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ELEMENTAL BRIEF 
OF THE UNITED STATES 

IN SUPPORT OF 

THE PLENARY POWER OF CONGRESS 
OVER ALIEN ENEMIES, AND THE CONSTITU- 
TIONALITY OF THE ALIEN ENEMY 
ACT (REVISED STATUTES, 
SECTIONS 4067-4070). 




WASHINGTON 

GOVERNMENT PRINTING OFFICE 

1918 



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FEB S 13K^ 



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A 6 A; 4 

INDEX AND SUMMARY. 

i 5 : d ^ 



, civ' I'age. ■ 

The Ali^n Enemy Act of July 6, 1798 (Rev. Stat., 
sees. 4067-4070), was enacted by Congress 
under its power and duty to protect the Na- 
tion against peril from enemies in time of war, 
and its constitutionality can not be doubted 
in the light of such object and of the circum- 
stances under which its provisions are in- 
tended to operate 1 

I. Legislative History of the Act of July 6, 

1798 (Rev. Stat., sees. 4067-4070) 6 

II. The cases arising under or referring to 
the Act of July 6, 1798 (Rev. Stat., sees. 
4067-4070), contain no expression of 
doubt by the courts as to its constitu- 
tionality, and four justices of the 
United States Supreme Court have 
participated in these cases _ . 20 

Lockington^s Case in fJie State Court 27 

Lockington v. Smith in, the Federal Court. 34 
It is to 1)6 especial]}^ noted that no- 
where in either of these opinions is 
there a trace of a doubt as to the 
constitutionality of the statute, and 
this notwithstanding eminent counsel, 
accustomed to appear before the 
United States Supreme Court, ap- 
appeared in both cases 37 

III. The power of Congress over the persons 
and property of alien enemies resi- 
dent in the United States in time of 
war is plenary and uncontrolled. It 
is derived from the power of Congress 
under the Constitution to declare 
war and to make rules concerning 
captures on land and water, as well 
as from the powers residing in the 
sovereign Nation under the Common 
Law, and under the Law of Nations ^ . 39 

(I) 



n 

The Alien Enemy Act — Continued. page. 

IV. The plenary power of the Congress of 
the United States to take the persons 
and property of resident alien ene- 
mies has been expressly upheld by 

the Supreme Court 48 

V. The exercise by Congress of its war 
powers with reference to resident 
alien enemies is not so restricted by 
the due process clause of the Fifth 
Amendment as to entitle an alien 
enemy to recourse to the courts in 
time of war 52 

VI. Due process of law, under the common 
law, gave to a resident alien enemy 
no rights which he could maintain 
in the courts. He had no rights or 
privileges, except such as arose from 
a license or other form of protection 
which the Sovereign chose to grant; 
his person or property could be 

seized and he had no redress 57 

English Cases 57 

American Cases 62 

Conclusion 64 



CITATIONS. 

AMERICAN CASES. 

Page. 

Angelus v. Sullivan (C. C. A. 2nd Circ. 1917) 52 

Bagwell v. Bale (1823) 1 Randolph, 272 63 

Basv. Tingy (1800) 4 Dallas, 37 6 

Bradwell v. Weeks (1815) 13 Johns (N. Y.) 1 63 

Brown v. United States (1814) 8 Cranch, 110 38, 48 

Butler r. Perry (1915) 240 U. S. 328 52 

Case of Fries (1799) 9 Fed. Cas. No. 5126 37 

CUnese Exclusion Case (1889) 130 U. S. 581 3, 55 

Clarice v. Morey (1813) 10 Johnson (N. Y.) 69 38, 62 

Ex Parte VaUaTidigham, (1863) 28 Fed. Cas. No. 16, 

816, p. 921 4 

Fairjax's Deviser. Hunter's Lessee (1813) 7 Cranch, 603 51 

Fang Yue Ting v. United States (1893) 149 U. S. 698 . . 55 

Hutchinson v. Broclc (1814) 11 Mass. 119 64 

InreDebs (1895) 158 U. S. 564 3 

Jacohsen v. Massachusetts (1905) 197 U. S. 11 52 

Laverty v. Duplessis (1813) 3 Martin (La.) 42 39 

LocUngton's Case (1813) Brightly (Pa.) 269 . . 3,20, 27-34, 37 
LocUngton v. Smith (1817) 1 Peters C. C. 466.-- 20,34-36 

Miller v. United States (1870) 11 Wall, 268 53 

Moyer v. Peabody (1909) 212 U. S. 78 4 

Murray's Lessee v. The HohoTcen Land Co. (1855) 18 

How. 272.. : 52 

Nishimura ETciu r. United States (1892) 142 U. S. 651 - 55 

Stewart v. Kahn (1870) 11 Wall, 493 64 

Turner v. Williams (1904) 194 U. S. 279 54 

United States v. Anderson (1869) 9 Wall. 56, 65 2 

United States v. Ju Toy (1905) 198 U. S. 253 55' 

United States y. Laverty (1812), 3 Martm, 733 39 

WareY. Hylton (1796) 3 DaU. 199 51 

Wong Wing v. United States (1896) 163 U. S. 228 .. .. 55 

ENGLISH CASES. 

Alciator v. Smith (1812) 3 Camp. 245 59 

Alsenius v. Nygren (1854) 4 El. & Bl. 217 59 

(III) 



IV 



Attorney General v. Weeden (1699) Parker, 267 58 

Beranelc, Re (High Division of the Supreme Court of 

Ontario 1915) 24 Canadian Criminal Cases, 252 __ 65 

Boulton V. Dohree (1808) 2 Camp. 163 59 

Brandon v. Neshit (1794) 6 T. R. 23 59 

Oase of TTiree Spanish Sailors (1779) 2 W. Blackistone, 

1324 - 60 

Dauhigny v. Davallon (1796) 2 Anstruther, 462 60 

Burley v. Newnham (1780) 2 Douglas 419 60 

Gusetu, Re (Superior Court, Province of Quebec, 

District of Montrej^l 1915) 24 Canadian Criminal 

Cases, 427 - 61 

King v. Dcspardo (1807) 1 Taunton, 25 60 

King v. Superintendent of Vine Street Police Station, 

1915 (Ex parte Liebman) 1 L. R. (1916) K. B. D. 

268 -45,58,61 

Maria v. Hall (1807) 1 Taunton 32 60 

McGonnell v. Hector (1802) 3 Bos. & P. 1 13 59 

OvM-n (1589) 45 Cro. Ehz. 142 59 

Porter v. Freudenberg (1915) 1 L. R. (1915) K. B. D. 

857 5S 

Rex V. IMliday (1917) (Ex parte Zadig) L. R. (1917) 

A. C. 260 43 

Rex V. HaUiday (ex parte Zadig) 1 I.. R. (1916) K. B. 

D. 738 - .^. - - . _ 43 

Rex V. ScUever (1759) 2 Burrow, 765 60 

Sparenhurgh v. Bannatyne (1797) 1 Bos. & P. 163 61 

Sylvester's Case (1702) 7 Mod. 150 59 

Wells V. Williams (1697) 1 Lord Raymond, 282; 

1 Salk, 46 - 59 

Wolf V. OxJiolm (1817) 6 M. & S. 92 _ 58 

TEXT BOOKS AND MISCELLANEOUS REFERENCES. 

Annals of Congress, 5th Cong., 1797-1799, Vol. 2_ _ 8-17, 42 

Annals of Congress. 1 3th Cong. , 181 3-1 814, Vol. 1 . . . 18 

Blackstone, Vol. T 57 

Coke's Littleton, 129a 59 

Dana's Wheaton's International Law (1866), sec. 304 

and note . 51 

Federalist, The, No. 41 39 

German War Code (Standard Translation) 41 



V 

Page. 

Gilbert's History of Common Pleas 59 

Halleck's International Law (1908) 51 

House Report No. 1 , 65th Cong., 1st Sess . 41 

Kent's Commentaries (1829), Vol. I 51 

Law Magazine & Review (1915), Vol. 40, p. 215 60 

Lord Halsbury's Laws of England (1907), Vol. I 57 

Moore's Digest of International Law, Vol. 4 56 

Opinions of the Attorney General, Vol. VII, p. 453 - . 20 

President Wilson's Address to Congress, April 2, 1917 - 40 

President's Proclamation of June 19, 1812 20 

Rawle's View of the Constitution (1825) 50 

Report of the Attorney General for year ending June 

30, 1917 - 41 

Solicitor's Journal (August 8, 1914), Vol. 58 57 

Story's Commentaries on the Constitution (1873), 

Sec. 1177 51 

Woolsey's International Law (1899), Sec. 118 51 

STATUTES AT LARGE. 

Act of May 28, 1798, ch. 48 (1 Stat. 561 :-. 6 

Act of June 13, 1798, ch. 53 (1 Stat. 565) 6 

Act of June 25, 1798, ch. 58 (1 Stat. 570) 1 

Act of June 25, 1798, ch. 60 (1 Stat. 572) 6 

Act of June 28, 1798, ch. 62 (1 Stat. 574) 7 

Act of July 6, 1798, ch. 66 (1 Stat. 577) 1, 6, 20 

Act of July 14, 1798, ch. 74 (1 Stat. 596) .2 

Act of March 2, 1799, ch. 24 (1 Stat. 709) 6 

Act of June 18, 1812, ch. 102 (2 Stat. 755) 20 

Actof July 6, 1812, ch. 130 (2 Stat. 781) 17 

Act of July 30, 1813, ch. 36 (3 Stat. 53) . 17 

REVISED STATUTES. 

Revised Statutes, sec. 4067-4070 1,6,20 

APPENDIXES. 

Appendix A 66 

Appendix B 68 

Appendix C 73 

Appendix D 80 



The alien enemy act of July 6, 1798 (Revised Statutes, 
Sees. 4067-4070), was enacted by Congress under its 
power and duty to protect tlie Nation against peril 
from enemies in time of war, and its constitution- 
ality can not be doubted in the light of such object 
and of the circumstances under which its provisions 
are intended to operate. 

The statute now attacked for unconstitutionality, 
Revised Statutes, sections 4067-4070 (see Appendix 
A of this brief), was first enacted as the act of July 

6, 1798 (1 Stat. 577), and was known as the alien 
enemy act. 

It must not be confused with the separate act 
known as the alien act, enacted June 25, 1798 
(1 Stat. 570),^ which with the sedition act of July 14, 

^ The legislative history of the alien enemy act is set 
forth in this brief ((infra, p. 6-20). It may be noted, in order 
to avoid confusion, that the alien act was reported as a bill 
in the Senate, May 4, 1798 (Annals of Cong., 5th Cong., 2d 
Sess., p. 544). It was debated May 8, 10, 25, 28, 29, 31, 
June 1 (pp. 564 et seq.); it was recommitted June 1, re- 
ported back June 4, and passed to a third reading June 

7. In the House, after a motion by Mr. Sewall, May 
16, 1798 (p. 1725), a bill was reported June 4 (p. 1868). 
The Senate bill was received in the House June 8 (p. 1896). 
The biU was debated June 16, 18, 19, 21 (pp. 1954-2027), 
and was passed June 21 by a vote of 46 to 40. The Senate 
concurred in the House amendments June 22, and the bill 
became a law, June 25, 1798. 

For views on the constitutionality of the alien act, see 
Judge Story and Judge Cooley in Cooley's Edition of Story's 
Constitutional Law, section 1294. See also an able article 
on "AUens imder the Federal Laws," in Illinois Law Review 
(1909), Vol. IV, pp. 130 et seq. (which, however, fails fully 
to discriminate l)otv, een the alien act of June 25, 1798, and 

27735—18 2 (1) 



1798 (1 Stat. 596), are commonly referred to as the 
alien and sedition laws, and which by their own 
terms were only to be in force for a period of two 
years. 

The alien act applied in times of peace to alien 
citizens of fiiendly nations who might be in the 
United States. 

The alien enemy act applied only in times of war 
or threatened war; it set forth the powers of the 
Nation over foreign enemies within its borders; it 
affected only those to whom the rules of war under the 
law of nations applied, and to whom no protection 
was due from the United States except such as it 
chose to bestow, with due regard to its own safety 
and the humane policy of modern Christian nations. 

It is in the light of the object of the statute and 
the time and circumstances under which its provi- 
sions are to operate that its constitutionality must 
be considered. {United States v. Anderson (1869), 9 
Wall. 56, 65.) 

The attack in this case is made upon the mode in 
which the Congress of the United States has exer- 
cised the highest function possessed by a legislative 
body — the function of protecting the Nation against 
foreign enemies. 

the alien enemy act of July 6, 1798). See also remarks 
of Field, J., on the alien act in the Chinese Exclusion Case 
(1889), 130 U. S., pp. 610, 611. See also Tucker's Black- 
stone, Vol. I, p. 301; Von Hoist's Constitutional History of 
the United States, Vol. I, p. 142; Daniels, J., dissenting in 
The Passenger Cases (1849), 7 How., p. 514; Senate Docu- 
ment 873, 62d Congress, 2d Session, on the Alien and Sedition 
Laws— Debates in the House of Delegates of Virginia. 



As Yeates, J., said in Lockington's Case (1813), 
Brightly, Pa., p. 289, a case treated at length infra: 
"The great prominent feature which is exhibited to 
our view in every part of this law, is, that its provisions 
were made for the public safety; and although the 
' dictates of humanity and national hospitality ' were 
not unattended to, their extent was limited to the 
salus populiJ^ 

The first right of every sovereignty is self-preserva- 
tion. The first duty of the National Legislature is 
to safeguard the Nation's existence. 

Every portion of the Constitution, particularly its 
restrictions upon Congress in respect to the rights 
of individuals, must be construed with due regard 
to this primary right and duty; for disaster to the 
Nation from foreign enemies imperils the Constitu- 
tion itself. 

" To preserve its independence, and to give security 
against foreign aggression and encroachment, is the 
highest duty of every nation, and to attain these ends 
nearly all other considerations are to be subordinated," 
said the Supreme Court in the Chinese Exclusion 
Case (1889), 130 U. S. 581, 606, 

" The entire strength of the Nation may be used to 
enforce in any part of the land the full and free exer- 
cise of all natural powers and the security of all rights 
entrusted by the Constitution to its care, " said the 
court in In re Debs (1895), 158 U. S. 564, 582. 

"When it comes to a decision by the head of the 
State upon a matter involving its life, the ordinary 



rights of individuals must yield to what he deems 
the necessities of the moment. Public danger war- 
rants the substitution of executive process for 
judicial process/' said the court in Moyer v. Peahody 
(1909), 212 U. S. 78, 85. 

To the present situation the following remarks of 
Judge Leavitt in the Circuit Court for the Southern 
District of Ohio, in 1863, in Ex Parte Vallandigham, 
28 Fed. Cases, No. 16,816, p. 921, are peculiarly 
applicable : 

In my judgment, when the life of the Re- 
public is imperiled, he mistakes his duty and 
obligations as a patriot who is not willing to 
concede to the Constitution such a capacity 
of adaptation to circumstances as may be 
necessary to meet a great emergency, and save 
the Nation from hopeless ruin. Self-preserva- 
tion is a paramount law, which a nation as 
well as an individual may find it necessary to 
invoke. Nothing is hazarded in saying that 
the great and farseeing men who framed the 
Constitution of the United States supposed 
they were laying the foundation of our Na- 
tional Government on an immovable basis. 
* * * They did, however, distinctly con- 
template the possibility of foreign war, and 
vested in Congress the power to declare its 
existence, and "to raise and support armies," 
and "provide and maintain a navy." They 
also made provision for the suppression of 
insurrection and rebellion. The}^ were aware 
that the grant of these powers implied all 
other powers necessary to give them full 
effect. 



The Government contends that : 

(1) The congressional debates in 1798 at the time 
of the passage of the AUen Enemy Act explain the 
necessity to preserve the country against the opera- 
tions of alien enemies, and show that practically no 
opposition was made on constitutional grounds. 

(2) The statute has been the subject of decisions 
by four Justices of the Supreme Court without any 
intimation of unconstitutionality. Text writers like 
Kent, Rawle, and Story have cited the statute. 

(3) The power of Congress over the persons and 
property of alien enemies resident in the United States 
in time of war is plenary and uncontrolled; it is de- 
rived from the power of Congress under the Constitu- 
tion to declare war and to make rules concerning 
captures on land and water as well as from the power 
residing in the sovereign Nation under the common 
law and under the law of nations. 

(4) The plenary power of the Congress of the 
United States to take the persons and property of 
resident alien enemies has been expressly upheld by 
the Supreme Court. 

(5) The exercise by Congress of its war powers 
with reference to resident alien enemies is not so re- 
stricted by the due process clause of the fifth amend- 
ment as to entitle an alien enemy to recourse to the 
courts in time of war. 

(6) Due process of law, under the common law, 
gave to a resident alien enemy no rights which he 
could maintain in the courts. He had no rights or 



privileges except such as arose from a license or 
other form of protection which the sovereign chose 
to grant; his person or property could be seized and 
he had no redress. 

I. 

LEGISLATIVE HISTORY OF THE ACT OF JULY 6, 1708 
(BEV. STAT. SECS. 4067-4070). 

It is to be noted in the first place that at the time 
when the statute in question was passed the United 
States was on the verge of a war with France. Tn fact, 
nine months later (that is, when the act of March 
2, 1799, relative to ships retaken from the enemy, 
was passed) the United States was held by the Su- 
preme Court in Bas v. Tingy (1800), 4 Dallas, 37, to be 
in a state of " imperfect war" with France, *'a qualified 
state of hostility," France being "a partial enemy." 

By the act of May 28, 1798 (1 Stat. 561), the Presi- 
dent had been authorized to seize an}^ armed vessels 
which had committed, or which were hovering round 
the coast for the purpose of committing, depredations 
on American vessels, and to retake any American 
vessel which had been captured. 

By the act of June 13, 1798.(1 Stafc. 565), commer- 
cial intercourse had been suspended between the 
United States and France. 

By the act of June 25, 1798 (1 Stat. 572), American 
vessels were authorized to oppose and defend any 
attack by French vessels and to repel by force any 
assault by and to capture any French vessel, and to 
retake any American vessel which had been captured; 



and the President was authorized to arm merchant 
vessels. 

By the act of June 28, 1798 (1 Stat. 574), the Presi- 
dent was authorized to imprison and capture any 
hostile persons found on any American vessel which 
had been recaptured, and armed French vessels 
brought into the United States were to be forfeited. 

President Adams, on July 7, 1798, appointed Gen. 
Washington as Lieutenant General and Commander 
in Chief for the armies raised or to be raised for the 
service of the United States; and Washington, in 
accepting the appointment July 13, 1798, referred, 
in words which with startling aptness might be used 
to describe the conditions of to-day, to 'Hhe conduct 
of the Directorate of France toward our country, their 
insidious hostility to its Government, their various 
practices to withdraw the affections of the people from 
it, the evident tendency of their acts and those of their 
agents to countenance and invigorate opposition, their 
disregard of solemn treaties and the laws of nations, 
their war upon our defenseless commerce, their treat- 
ment of our ministers of peace f^ and he said, "satis- 
fied, therefore, that you have sincerely wished and en- 
deavored to avert war, exhausted to the last drop of 
reconciliation, we can with pure hearts appeal to 
heaven for the justice of our cause.'' 

In his special message to Congress, March 19, 
1798, President Adams had recommended that 
measures be taken for protection and defense, and 
called upon Congress "to manifest a zeal, vigor, and 



8 

concert in defense of the national rights in propor- 
tion to the danger with which they are threatened." 

It thus appears that a state of war existed which 
amply called for the exercise of the war powers of 
Congress. 

The internal conditions of the United States also 
demanded protection, for it was filled with hostile 
aliens. As was stated by Mr. Rutledge in the House 
of Representatives in the debate which is set forth, 
infra J "intriguing agents and spies . . . are now 
spread all over the country." Mr. Otis spoke of the 
aliens who were " extremely instrumental in fomenting 
hostilities against this country," and ^^ also in alienat- 
ing the affections of our own citizens," and that "an 
armj^ of soldiers would not be so dangerous to the 
country as an army of spies and incendiaries scat- 
tered through the continent." 

It thus appears that in 1798 the United States was 
facing a situation almost exactly parallel to the 
situation in 1917; and it was out of such a situation 
that the statute in question arose. Its history, as 
appears in the Annals of Congress, Fifth Congress, 
1797-1799, volume 2, is as follows: 

May 1, 1798 (p. 1566), Mr. Sewall, from the Com- 
mittee for the Protection of Commerce and the De- 
fense of the Country, who were instructed 'Ho 
inquire and report whether any and what alterations 
were necessary in the naturalization act, and into 
the expediency of establishing, by law, regulations 
respecting aliens arriving, or residing, within the 
United States,'' reported three resolutions, saying 



that "some precautions against the promiscuous 
reception and residence of aUens, which may be 
thought at all times advisable, are at this time more 
apparently necessary and important, especially for 
the securing or removal of those who may be sus- 
pected of hostile intentions." 

The three resolutions were agreed to May 3, in the 
Committee of the Whole of the House, after debate- 
(p. 1573). The third resolution was as follows: 

Resolved, That provision be made, by law, 
for the apprehending, securing, or removing, 
as the case may require, of all aliens, being 
males, of the age of fourteen years and up- 
wards, who shall continue to reside or shall 
arrive within the United States, being natives, 
citizens, or subjects of any country, the Gov- 
ernment whereof shall declare war against 
the United States, or shall threaten, at- 
tempt, or perpetrate any invasion or preda- 
tory incursions upon their territory, as soon 
as may be after the President of the United 
States shall make proclamation of such event. 
Providing, in all cases where such aliens are 
not chargeable with actual hostility, that the 
period settled by any treaty with such hostile 
nation, or other reasonable period, according 
to the usage of nations, and the duties of 
humanity, shall be allowed for the departure 
of such aliens, with all their effects, from the 
territory of the United States; and excepting 
all cases of such aliens to whom passports or 
licences of residence may be granted consist- 
ently with the public safety. 



27735—18 3 



10 

The debate was chiefly on the question whether 
there should be added to the words "the Govern- 
ment whereof shall declare war against the United 
States" the words "or shall authorize hostilities 
against the United States." It was finally decided to 
amend the resolution by striking out the first phrase 
referred to and by inserting the words "between 
which and the United States there shall exist a state 
of declared war." 

Throughout the debate it was stated to be the pur- 
pose of the resolution to vest in the President the 
power to remove and restrain alien enemies. Thus 
Mr. Rutledge said that (p. 1574)— 

In fact, in the situation of things in 
which we are now placed, the President 
should have the power of removing such in- 
triguing agents and spies as are now spread 
all over the country. What would be the con- 
duct of France, if in our situation'? In 24 
hours every man of this description would 
either be sent out of the country or put in jail, 
and such conduct was wise. 

Mr. Otis said (p. 1575) : 

When an enemy authorized hostilities, that 
was the time to take up that crowd of spies 
and inflammatory agents which overspread the 
country like the locusts of Egypt, and who 
were continually attacking our liberties. The 
provision would doubtless be exercised with 
discretion. There might be Frenchmen in 
this city and others (and he doubted not there 
were) who were peaceable, well-disposed per- 



11 

sons, and against whom it never could be 
thought necessary to exercise this power; but 
there were other persons, not only in this city, 
but in others, who have not only been ex- 
tremely instrumental in fomenting hostilities 
against this country, but also in alienating 
the affections of our own citizens; and it was 
men of this description whom he wished to 
remove from the country. 

It is proposed by this resolution to give the 
President the power to remove aliens, when 
the country from which they come shall 
threaten an invasion. * * * His opinion 
was, that something ought to be done which 
should strike these people with terror; he did 
not wish to give them an opportunity of exe- 
cuting any of their seditious and malignant 
purposes; he did not desire, in this season of 
danger, to boggle about slight forms, nor to 
pay respect to treaties already abrogated, but 
to seize these persons, wherever they could be 
found carrying on their vile purposes. 

Mr. Sitgreaves said (p. 1577) : 

The business of defense would be very im- 
perfecta done if they confined their operations 
of defense to land and naval forces and neg- 
lected to destroy the cankerworm which is 
corroding in the heart of the country. There 
could be no question on this subject. It is 
well understood by every member of the com- 
munity. There is no occasion for specific 
proof that there are a great number of aliens 
in this country from that nation with whom 
we have at present alarming differences; that 



12 

there are emissaries amongst us who have not 
only fomented om- differences with that coun- 
try, but who have endeavored to create 
divisions amongst our own citizens. They 
are assiduously employed at this moment, 
and it is much to be lamented that there 
exists no authority to restrain the evil. It 
was therefore peculiarly incumbent on Con- 
gress to add to their other measures of defense, 
such powers as will protect the country against 
this evil. He believed this could not be 
effected without the adoption of some such 
principle as that under consideration. If the 
power was too limited, the enemy would 
not be met. There could be no difficulty 
in point of right. All understand the rights 
to which aliens are entitled by the laws of 
nations. They are no more than the rights of 
hospitality, and this right varies according to 
the relation in which the country from which 
they come, and that in which they reside, is 
peaceable, or otherwise. 

We do not owe to the citizens of France 
residents in this country (since France had 
been mentioned) the same hospitalities which 
we owe to those foreigners who are alien 
friends; though there were rights of hos- 
pitality which could not be done away with 
in time of war, particularly as it respects 
alien merchants, which were provided for 
in this resolution. And except a person 
had an actual agency in designs which 
would endanger the peace of the country, 
though he was ordered out of the country, a 
free passage would be given to himself and 



13 

effects ; and if actually engaged in designs 
against the country, there would be a strong 
necessity for restraining the liberty of any such 
persons. 

Mr. Gallatin said (pp. 1581 and 1582) that there 
was "a difference in the relation between alien sub- 
jects of a nation with whom we are at war, and those 
of a nation with whom we are in a state of actual 
hostility," and that it was ''a sound principle that 
alien enemies might be removed * * * by a 
principle which existed prior to the Constitution, 
and coeval with the law of nations." 

May 8, 1798, the resolution was agreed to in the 
House and referred to the Select Committee on Com- 
merce and Defense, to report a bill accordingly 
(p. 1631). 

May 18, 1798 (p. 1773), Mr. Sewall for the com- 
mittee reported a bill which was debated in the Com- 
mittee of the Whole House May 22, 1798 (pp. 1785. 
1792). 

A motion by Mr. Lyon to strike out of the bill 
reference to "threatened" war was rejected by a 
vote of 44 to 39. 

The chief objections raised were to that portion of 
the bill which made it a crime in section 3 to "har- 
bor or conceal any alien liable as an enemy, know- 
ing him to be such, after proclamation by the Presi- 
dent." On motion of Mr. Bayard, the penalty was 
changed so as to make the above acts a misde- 
meanor — 44 to 25. Mr. Bayard thought the offense 
was defined in too indefinite terms. 



14 

Mr. Gallatin opposed the third section of the bill 
and moved to recommit it, saying that his arguments 
went wholly against that, and that his objections to 
the other parts of the bill were immaterial. He 
opposed the requirement of the third section that 
all justices, judges, and other officials should be 
bound to carry into effect the proclamation of the 
President. His motion to recommit was lost by the 
casting vote of the Speaker by vote of 38 to 38, and 
the bill was ordered to be engrossed for a third 
reading. 

Mr. Sewall pointed out that the intent of the bill 
was not to punish crimes committed by the alien 
enemy, but to provide for the public safety by 
lodging in the President the power to regulate the 
conduct of alien enemies. He said (p. 1790) : 

The gentleman from Pennsylvania, in order 
to bring forward this motion, has shut his 
eyes to the intention of the bill. He says it 
is a bill for punishing crimes which are not 
defined. He never knew that alien enemies 
were guilty of any offense merely as such. 
It is a bill to provide for the public safety in 
certain cases. In the event of a war with 
France, all her citizens here will become alien 
enemies, but neither this bill nor common 
sense would consider them as offenders. They 
may be offenders, but not because they are 
alien enemies; nevertheless it is necessary to 
provide for the public safety, and in all coun- 
tries there is a power lodged somewhere for 
taking measures of this kind. In this country 
this power is not lodged whoUy in the Execu- 



15 

tive; it is in Congress. Perhaps, if war was 
declared, the President might then, as Com- 
mander in Chief, exercise a military power 
over these people; but it would be best to 
settle these regulations by civil process. They 
would be regulated by treaties as well as by 
the laws of nations. The intention of this 
bill is to give the President the power of judg- 
ing what is proper to be done, and to limit his 
authority in the way proposed by this bill. 
In many cases it would be unnecessary to 
remove or restrict ' aliens of this description; 
and he believed it would be impossible for 
Congress to describe the cases in which aliens 
or citizens ought to be punished, or not; 
but the President would be able to determine 
this matter by his proclamation. 

Mr. Otis said (pp. 1790, 1791): 

Will gentlemen think it right * * * to 
declare that alien enemies shall only be re- 
moved, or otherwise restricted, on conviction 
of some overt act to be specified in th6 act? 
They are at present liable, with all other 
persons, to be punished for crimes; so that a 
regulation with this view would be unneces- 
sary. But there may be cases where the 
conduct of such persons being extremely 
suspicious, they ought to be taken into cus- 
tody, though no positive crime could be 
proved. * * * i^ would be best to vest a 
discretionary power in the Executive to secure 
and take care that these men should do no in- 
jury. And this could not be looked upon as 
a dangerous or exorbitant power, since the 
President would have the power, the moment 



16 

war was declared, to apprehend the whole of 
these people as enemies, and make them 
prisoners of war. 

* * * This bill ought rather to be con- 
sidered as an amelioration or modification of 
those powers which the President already pos- 
sesses as Commander in Chief, and which the 
martial law would prove more rigorous than 
those proposed by this new regulation. Unless 
gentlemen were disposed, therefore, to suffer 
those men to go at large, and to carry on a 
correspondence with their countrymen and 
our enem}^; unless they will consent to suffer 
a band of spies to be spread through the 
country, from one end of it to the other, who, 
in case of the introduction of an enemy into 
our country, may join them in their attack 
upon us, and in their plunder of our property, 
nothing short of the bill like the present can 
be effectual. 

If the bill was recommitted, he did not think 
any definite provision could be made. It 
was necessary the President should have the 
power of judging in this case, and that pun- 
ishment ought not to depend upon the slow 
operations of a trial. Though possessed of 
this power, the President would doubtless 
suffer all such persons to remain in the coun- 
try as demeaned themselves peaceably; but 
when they discovered a contrary spirit, he 
would treat them accordingly. 

May 23, 1798 (pp. 1793-1796), the debate was 
continued, Mr. R. Williams and Mr. Gallatin again 
opposing the power proposed to be given to the 
President, although Mr. Gallatin stated that he 



17 

"thought the two first sections of the bill should be 
left at large as they are." 

June 25, 1798 (p. 2034,) the bill, with the third 
section amended, was reported and ordered to be 
read a third time; and on June 26, 1798 (p. 2049), 
the bill passed the House, 52 votes being cast in its 
favor (no record being made of any vote cast contra) . 
In the Senate, June 26, 1798, the bill was ordered 
to a second reading (p. 590). July 2 it was reported 
from committee with amendments which were 
adopted (p. 596), and July 3 (p. 598) it was read a 
third time and passed with amendments, and on 
the same day the House concurred with the Senate 
amendments. The bill became a law July 6, 1798. 
After 1798, Congress twice recognized the alien 
enemy law as valid; first by amending it by the act 
of July 6, 1812, ch. 130 (2 Stat. 781), as follows: 

That nothing in the proviso contained in 
the act entitled '^An act respecting alien 
enemies," approved on the sixth day of July, 
one thousand seven hundred and ninety- 
eight, shall be extended or construed to 
extend to any treaty, or to any article of any 
treaty, which shall have expired, or which 
shall not be in force, at the time when the 
proclamation of the President shall issue. 

Second, by recognizing the right of the United 
States to apprehend or remove aliens, in the natu- 
ralization act of July 30, 1813, ch. 36 (3 Stat. 53), as 
follows : 

That persons resident within the United 
States, or the Territories thereof, on the eight- 

2773S— 18 4 



18 

eenth day of June, in the year one thousand 
eij2:ht hundred and twelve, who had before 
that day made a declaration accordins; to 
law of their intentions to ]:)ecome citizens of 
the United States, or who by the existing 
laws of the United States were on that da)^ 
entitled to become citizens, without making 
such declaration, ma}' l^e admitted to become 
citizens thereof, notwithstanding they shall 
be alien enemies at the times and in the 
manner prescribed by the laws heretofore 
passed on that subject: Provided, That noth- 
ing herein contained shall be taken or con- 
strued to interfere with or prevent the appre- 
hension and removal, agreeably to law, of 
any alien enemy at any time previous to the 
actual naturalization of such alien. 

In the debates on the latter act. Members of Con- 
gress recognized the right of the United States to 
arrest or remove alien enemies as then existing, and 
argued for mitigation of the naturalization laws so as 
to allow naturalization of alien enemies. 

Thus, Mr. Kennedy, in the House of Representa- 
tives, July 19, 1813 (Annals of Congress, 13th Cong., 
1813-14, vol. 1, pp. 465, 466, 468), said: 

The situation of alien enemies must be 
disagreeable, inconvenient, and embarrassing 
to them beyond measure. By the declaration 
of war in which we are engaged, they are 
deprived of all their civil rights, they can not 
institute a suit for the recoveiy of their just 
demands, nor can they repair themselves in 
damages for any maltreatment they may 



19 

receive in their persons or property. They 
are subject and liable, according to a power 
vested in the President by an acfc passed in 
1798, to be exiled from their homes, their 
families, and property, to any distant place 
designated by him within the limits of the 
United States, or at his pleasure may be 
ordered entirely out of the country. 

And even if they are not removed in the 
manner I have mentioned, yet the}^ are con- 
tinually harrassed with the marshals' ad- 
vertisements ordering them to register them- 
selves or be subject to severe and heavy 
penalties. Those of them in the State that 
I in part represent, who reside in 40 miles of 
tidewater and who are in pursuit of mercantile 
business and have supported their families 
by that means, are deprived of the privilege 
and ordered to desist from the same (pp. 465, 
466). 

Sir, there is a fatality that seems to attend 
this bill. Formerh^, it passed both Houses of 
Congress, and was rejected by the President. 
Last session it was postponed from time to 
time, under various pretenses, until it was too 
late to act upon it; and at this session, it has 
been committed, laid over, and at last re- 
ported in this mutilated shape. Permit me 
here to observe, that I have understood from 
good authority, though not from the President 
himself, that the bill was refused his sanction 
because it contained no provision for the 
removal of alien enemies prior to their nat- 
uralization, and that he has no objections to 
the bill in its present shape (p. 468). 



20 

The validity of the statute was also apparently 
assumed in the opinion of Attorney General Caleb 
Gushing of August 31, 1855 (7 0p. Atfc'yGen.453,454). 

II. 

The cases arising under or referring to the act of July 
6, 1798 (Rev. Stat., sees. 4087-4070), contain no 
expression of doubt by the courts as to its constitu- 
tionality, and four justices of the United States 
Supreme Court have participated in these cases. 

The first cases arising under the statute occurred 
in the War of 1812 — one decided in the Supreme 
Court of Pennsylvania in 1813, Lockingtonls Case, 
Brightly (Pa.), 269, and one in the Circuit Court of 
the United States in 1817, Lockington v. Smith, 1 
Peters C. C. 466. The State papers, by means of which 
the President put the statute into operation, do not 
appear in full in the printed reports of these cases, 
nor can they be found in any printed Government or 
other publication; the original pleas of the defendant 
in Lockington v. Smith, on file in the office of the clerk 
of the District Court of the United States for the 
Eastern District of Pennsylvania, at Philadelphia, 
however, contain a statement of the official pro- 
ceedings of the President acting under this statute. 
From these original pleadings, it appears that after 
the date of the act of Congress declaring war, June 18, 
1812 (2 Stat. 755), and after the proclamation of war 
with Great Britain, June 19, 1812, the President, by 
public notice issued from the Department of State, 
July 7, 1812, directed all British subjects in the 
United States to report to the United States mar- 



21 

shals their names, age,, time they had been in the 
United States, the persons composing their famiUes, 
their place oi residence, and their occupation or 
pursuit, and whether they had appHed for natu- 
rahzation; alien enemies arriving from foreign coun- 
tries were to report to the marshal immediately 
on arrival; no alien enemy could proceed from a 
port or place within one district to a port or place 
in another district without a special passport from 
the marshal or collector of customs; alien enemies 
permitted to travel were, forthwith on arrival, to 
report to the marshal and exhibit their passports. 

On February 23, 1813, by public notice issued from 
the Department of State, the President ordered that 
^' alien enemies residing, or being within forty miles of 
tidewater, should forthwith apply to the marshals of the 
States, or Territories in which they respectively were, 
for passports to retire to such places, beyond that dis- 
tance from tidewater, as should be designated by the 
marshals." 

On the same day, February 23, 1813, by written 
directions from the Secretary of State, ''all those to 
whom the said public notice and direction of the same 
date had reference, engaged in commerce, who did not 
immediately conform to the said requisition and 
direction, were to be taken into custody and conveyed 
to the place assigned to them, unless special circum- 
stances should require indulgence, and ... all those 
of other occupations whom it might not be deemed 
proper to suffer to remain within the prescribed dis- 
tance of tidewater, should be notified to repair to the 



22 

interior of the country, to which they were enjoined 
to confine themselves." 

On March 12, 1813, by instructions from the De- 
partment of State to the marshals, the regulations 
concerning aliens, established in conformity to the 
notice of February 23, 1813, and the accompanying 
instructions to marshals of that date, were to be en- 
forced, and the persons designated for removal were 
immediately to repair to the places assigned them for 
residence. 

On April 15, 1813, the marshals were informed and 
instructed by notice from the Department of State 
that the President had appointed John Mason, Esq., 
of Georgetown, in the District of Columbia, Commis- 
sary General for prisoners of war, including the super- 
intendency of alien enemies, whose instructions were 
to be obeyed unless otherwise directed by the De- 
partment of State. 

On May 31, 1813, the Commissary General for 
prisoners addressed a circular letter to all marshals, 
as follows: 

The President being desirous of defining 
more particularly the treatment of alien 
enemies, and of extending as much indulgence 
to them as may be compatible with the pre- 
cautions made necessary by the present state 
of things, directs, that, in regard to such 
as maj'' be within your district, you will be 
governed by the following rules. You will 
cause to be removed, as heretofore prescribed, 
if not already done, under the former orders 
from the Department of State, all who are not 



23 

females or under 18 years of age, who are not 
laborers, mechanics, or manufacturers, ar- 
rived in the country previous to the declara- 
tion of war, and actually employed in their 
several vocations; subject, however, to the fol- 
lowing modifications. 

On November 12, 1813, the Commissary General for 
prisoners, issued a circular letter instructing the 
marshal that — 

it having been found that the lenity shown to 
alien enemies, remaining in the country, had 
frequently been abused by that class to which 
a residence remote from tidewater had been 
assigned, and that some had gone off clandes- 
tine to the enemy, it had been determined to 
guard against such abuses in future, by requir- 
ing an honorable engagement from all such 
persons to be of good conduct, and to observe 
the limits prescribed to them, wherefore the 
said marshal was instructed by the said Com- 
missary General as aforesaid, by order of the 
President of the said United States with the 
least possible delay, after the receipt of the 
said letter of instructions, to offer for execution 
to every alien enemy within the said Pennsyl- 
vania district, who had been, or should be 
thereafter removed from the vicinity of tide- 
water, a parole of honor, according to a form 
thereof inclosed in the said letter of instruc- 
tions, and if refused to place every person so 
refusing without distinction forthwith in close 
confinement and since the same could not when 
understood be considered a harsh measure, by 
any of those of evil design, the said marshal was 



24 

by the said letter of instructions requested to 
explain to all concerned, why it had become 
necessary. 

On July 10, 1812, the marshal for the district of 
Pennsylvania notified all British subjects to report, 
and July 18, Lockington reported at Philadelphia as 
an alien enemy engaged in and connected with com- 
merce. On March 13, 1813, Lockington applied for 
a passport to retire to Lancaster, which destination 
upon his application was later changed to Reading (a 
place beyond 40 miles from tidewater, designated by 
the marshal as the place of retirement) : he was sent 
there and remained there until November 9, 1813, 
when he was found at large in Philadelphia in viola- 
tion of the regulations. On being directed to retire 
to Reading, he refused, whereupon the marshal took 
him into custody and confined him in the debtors' 
apartment of the State prison of Pennsylvania. 

On November 12 the Commissary General for pris- 
ners, Mason, instructed the marshal that — 

the course he had taken * * * was en- 
tirely correct, that the regulations of the 
Government should be enforced, that if rigor 
were made necessary by the conduct of per- 
sons who had constantly experienced mildness 
at its hands, rigor must be used, 

and that Lockington, however, might be offered a 

parole. 

On November 12 Lockington applied for a writ of 

habeas corpus to the Chief Justice of the Supreme 

Court of Pennsylvania, which petition was denied, 

and the prieoner remanded. 



25 

On November 17 Mason notified the marshal that 
no alien enemy prisoner was to be liberated on parole 
except by special order. 

On November 20 Lockington was offered a parole 
and refused to sign. 

In December, 1813, Lockington sued out a new 
writ in the Supreme Cornet of Pennsylvania, which 
heard the case on January 1, 1814, and remanded the 
prisoner. 

On April 19, 1814, Lockington was offered and 
signed a parole, and was granted a passport to pro- 
ceed to Reading, 

and to go from time to time at his own dis- 
■ cretion to a distance therefrom not exceeding 
five miles upon condition that he gave his parole 
of honor, not to withdraw from the bounds so 
prescribed without leave for that purpose from 
the said marshal, that he would behave with 
due respect to the laws and authorities of this 
country, and also that he would not directly 
or indirectly carry on a correspondence with 
any of the enemies of the United States, or 
receive, or wi'ite any letter or letters to, or 
from, any alien enemy, or enemies whomso- 
ever, but through the hands of the said 
marshal in order that they might be read and 
approved by him, thereby declaring that he 
had given his parole of honor accordingly and 
that he would keep it inviolably, whereupon 
and under the faith, sanction and effect of 
the said parole of honor. 
Lockington then, in April, 1814, sued the marshal, 
John Smith, in the United States Circuit Court for 

27735—18 5 



26 

the District of Pennsylvania, for assault and battery 
and false imprisonment. The defendant filed special 
pleas of justification, January 27, 1817, which were 
demurred to. The case was argued at the April 
term, 1817, and decided at the October term, 1817. 

From the original copies of the pleas filed by the 
defendant, the following additional facts appear 
(which are summarized only in the printed report of 
the case) . 

On April 19, 1813, by directions issued from the 
office of the Commissary General for prisoners, the 
marshals were instructed that — 

it by no means followed, that because an alien 
enemy was more distant from the navigable 
waters than the line drawn by the general in- 
structions from the Department of State, 
beyond which to remove persons of that de- 
scription by way of precaution, that he was 
to be permitted to remain, under reprehensible 
conduct undisturbed; in the case of an alien 
enemy, who should so far abuse the indulgence 
and hospitality of the country in time of war, 
with his nation, as to declare his adherence to 
the enemy, and disposition to support their 
interest, or, who should attempt to distrust 
the confidence reposed in their Government 
by our citizens, he, the said marshal, should, 
first taking care to establish the fact, place 
him immediately in close confinement. 

The marshal averred that Lockington, while first 
residing at Reading upon his passport, and while he 
resided there afterwards under the parole, and while 
he was restrained in prison in Philadelphia, " became 



27 

and was chargeable with actual hostility toward the 
people and Government of the said United States of 
America, and with other crimes against the public 
safety by declaring his adherence to the said hostile 
nation, with which war then and there prevailed and 
had been proclaimed as aforesaid, by declaring his 
intention to escape from his said restraint and secur- 
ity, and to join the said hostile nation, in violation of 
the regulations as aforesaid found necessary in the 
premises and established for the public safety, by the 
President of the United States as aforesaid, and by 
declaring that he corresponded with the subjects of 
the said hostile nation, and had intercourse with 
them." Whereupon, ''the marshal averred, it be- 
came the duty of the said marshal of the said dis- 
trict in which the said alien enemy had been appre- 
hended 'Ho execute the orders of the President of 
the United States in the premises." 

Lockington' s Case in the State Court. 

In the State court the case is reported as Locking- 
ton's Case, Brightly (Pa.), 269. 

It is important to note the exceptions to the peti- 
tion for the writ of Jiabeas corpus, which are set forth 
in the return filed by the marshal. These do not 
appear in the printed report of the case, but appear 
in the minute book of the Supreme Court of Pennsyl- 
vania from 1806 to 1816 in the office of the prothono- 
tary of the Supreme Court of Pennsylvania in and for 
the eastern district, at Philadelphia. The last three 
exceptions deal with the power of a State court to 



28 

issue habeas corpus, and have no bearing on the pres- 
ent issue. The first five exceptions, however, pre- 
sent the precise question now at issue, and state very 
forcibly the reasons for upholding the statute: 

1. Because by the Constitution of the United 
States Congress possesses exclusively the power 
"to declare war, grant letters of marque and 
reprisal, and make rules concerning captives 
on land and water." 

2. Because by the strict principles of the 
law of nations, the citizens or subjects of the 
enemy, residing within the United States at the 
time of the declaration of hostilities against 
the United Kingdom of Great Britain and Ire- 
land, were liable to be made prisoners of war. 
The strict principle of the law has been lib- 
erally and honorably relaxed in modern times 
through the medium of treaties and statutes 
and of proclamations; but the power to relax 
the principle is connected inseparably with the 
power to enforce it, or, in other words, with the 
power to declare the war. 

3. Because the acts of Congress have stated 
and limited the indulgence to be shown to alien 
enemies; and have assigned to Federal and 
State authorities, such portions of jurisdiction, 
on the subject, as public policy, and private 
justice were deemed to require. So far, there- 
fore, as Congress have empowered the honor- 
able Chief Justice to take cognizance of the 
case of an alien enemy, in the actual custody 
of the marshal of the district of Pennsylvania 
under the authority hereinbefore set forth, 
and no further, a jurisdiction may be sustained 
on the present occasion. 



29 

4. Because the acts of Congress have not 
authorized a single judge, or justice, of a State, 
to ' take cognizance of the case of an alien 
enemy, for the purpose of apprehending an 
alien enemy; examining and hearing any 
complaint against him; ordering him to be 
removed out of the territory of the United 
States, or to give sureties of his good behavior, 
or to be otherwise restrained, conformably to 
the proclamation or other regulations, which 
the President of the United States has estab- 
lished in the premises nor for any other pur- 
pose whatsoever; that the acts of Congress 
have for certain specific purposes vested a 
jurisdiction in the several courts of the United 
States, and of each State, having criminal 
jurisdiction, and in the several judges and 
justices of the courts of the United States, 
but such jurisdiction is only vested upon com- 
plaint against an alien enemy, who shall be 
resident and at large, to the danger of the 
public peace, or safely and contrary to the 
tenor or intent of the President's proclama- 
tion and regulations. 

5. Because the acts of Congress have not au- 
thorized, any Federal, or State, court, nor any 
Federal or State judge or justice to discharge 
an alien enemy from the custody of the mar- 
shal, or from any restraint, to which he has 
been subjected by the regulations, directions 
and orders, of the President of the United 
States, established and issued in due form of 
law. 

In view of the decision of the court, the point must 
be emphasized that it was contended by the United 



30 

States then, as now, that " by the strict principle of the 
law of nations," alien enemies residing within the 
United States, "were liable to be made prisoners of 
war," and that "the power to relax the principle is 
connected inseparably with the power to enforce it, 
or, in other words, with the power to declare the 
war." Such power inheres in Congress alone and 
not in the courts. 

In his decision on the first petition for habeas corpus, 
Chief Justice William Tilghman held, first, that the 
apprehending, restraining, and securing mentioned in 
the first section of the bill was not "intended solely 
for the purpose of removal out of the United States" 
(p. 278). 

It is a provision for the public safet}^ which 
may require that the alien should not be re- 
moved but kept in the country under proper 
restraints; and the nature and degree of these 
restraints, in cases where there has been no 
misbehaviom', may depend, in some measure, 
on the treatment which the hostile Govern- 
ment gives to citizens of the United States 
who may chance to be within its power. 

The Chief Justice then held that the power of the 
President to order the removal and restraint of the 
alien enemy under section 1 of the act was not limited 
to taking action through proceedings in court (pp. 
279, 280) : 

It is never to be forgotten that the main 
object of the law is to provide for the safety of 
the country from enemies who are suffered to 
remain within it. In order to effect this safety, 



31 

it might be necessary to act on sudden emer- 
gencies. It is well known that the United 
States are exposed to great danger in a war 
with an enemy who commands the sea. 
Bounded by the Atlantic Ocean to a great 
extent, with numerous bays and navigable 
rivers, penetrating the very heart of the 
country, there is no knowing when, or where, 
the attack may be made. Without incurring 
the charge then of undue severity, prudence 
might require, that alien enemies residing in 
large cities, should be removed with more 
expedition than the formalities of. law admit. 
The President, being best acquainted with the 
danger to be apprehended, is best able to judge 
of the emergency which might render such 
measures necessary. Accordingly, we find that 
the powers vested in him are expressed in the 
most comprehensive terms. He is to make 
any regulations which he may think necessary 
for the public safety, so far as concerns the 
treatment of alien enemies. It is certain, that 
these powers create a most extensive influence, 
which is subject to great abuse: but that was 
a matter for the consideration of those who 
made the law, and must have no weight with 
the judge who expounds it. The truth is, that, 
among the many evils of war, it is not the least, 
to a people who wish to preserve their freedom, 
that, from necessity, the hands of the executive 
power must be made strong, or the safety of 
the nation will be endangered. 

The uses to which the second section of the act 
may be put and the necessity for some provision for 



32 

additional enforcement through the courts was then 
pointed out, as follows (pp. 280, 281) : 

Many regulations may be made, which con- 
tain no order for the marshal to act, or which 
may direct him to proceed by way of com- 
plaint to the judges. If the regulation in 
question had simply been that alien enemies 
should retire to a place to be appointed by the 
marshal, any citizen might have complained of 
an alien enemy who declined to comply; and 
a judge might have made and enforced an 
order for his removal. There may be various 
regulations for the general conduct of alien 
enemies, without pointing out the mode of 
carrying them into effect ; and in all such cases 
the courts may take cognizance of them. 
There may be regulations which barely order 
that certain things shall be done, or shall not 
be done, without defining the penalty in case 
of disobedience. In such cases the judges to 
whom complaint is made are vested with a 
considerable discretion. They may, accord- 
ing to the nature of the case, either direct the 
alien enemy to be removed out of the United 
States, or to give security for his good be- 
havior, or to be imprisoned until the order of 
the President is complied with. 

In their decision on the second habeas corpus peti- 
tion the judges of the Supreme Court of Pennsyl- 
v^ania held as follows: Chief Justice Tilghman re- 
terated his previous opinion. Judge Yeates held 
that the first section of the statute alone warranted 

confinement by the marshal for the purpose of re- 
noval under the President's direction. 



33 

(p. 292:) I therefore consider the true con- 
struction of the act in question to be, that the 
marshal may legally enforce the directions of 
the President, communicated by the proper de- 
partments, without being under the necessity 
of recurring to the judicial authority for that 
purpose. 

(P. 291:) When the vessel of the Common- 
wealth is in danger, partial evils must be sub- 
mitted to, in order to guard against a general 
wreck. Aliens who have come among us 
before a declaration of war against their sover- 
eign, and continue to reside among us after it, 
can not expect an exemption from such evils. 
Should our country be invaded, or our coasts 
blocl^aded, common prudence suggests that 
such persons should be removed from the 
scene of action. They may be safely detained, 
without subjecting them to unreasonable hard- 
ships, until it can be ascertained what course 
of conduct will be observed by the hostile coun- 
try^ towards our own citizens resident there. 
The 'Maw's delay" would ill suit such removals 
in cases of sudden emergency. 

Judge Brackenridge held (pp. 295, 296) : 

I consider alien enemies, so apprehended, 
etc., as coming under the denomination of pris- 
oners of state, not for any offense against the 
State, but for reasons of state; it being neces- 
sary for the safety of the State that they 
should be so apprehended, etc. Having not 
been taken in battle, I can not call them 
prisoners of war, for they are not liable to be 
exchanged. But what else can they be con- 

27735—18 6 



34 

sidered, when apprehended, but as prisoners 
to some extent? By this act, entitled ''An 
act respecting alien enemies," the President 
would seem to be constituted, as to this de- 
scription of persons, with the power of a 
Roman dictator or consul, in extraordinary 
cases, when the llepublic was in danger, that 
it sustain no damage: ne quid detrwienti 
respublica capiat. * * * Alien enemies re- 
maining in our country after a declaration of 
war are to be treated according to the law of 
nations, and it has been so argued in this case. 
Shall then the judicial power constitute itself 
a judge between the Executive of the General 
Government and the nation with whom we 
are at war, and say whether the proceeding in 
the case of their subjects remaining in our 
country has been according to the law of 
nations ? 

Lockington v. Smith in the Federal Court. 

In the Federal Court, a case of assault and battery — 
Lockington v. Smith (1817), 1 Peters C. C. 466— Mr. 
Justice Washington (then a member of the United 
States Supreme Court) held that the case had been 
''so fulty discussed, and, to my mind, so satisfactorily 
decided," b}^ Chief Justice Tilghman, that he would 
content himself with a brief expression of the reasons 
for his opinion, sustaining the legality of the marshal's 
action. He held that (p. 471) : 

It seems perfectly clear that the power to 
remove was vested in the President, because, 
under certain circumstances, he might deem 
that measure most effectual to guard the public 



35 

safety. But he might also cause the alien 
to be restrained or confined, if in his opinion 
the public good should forbid his removal. 

As to the contention that the President could only 
enforce his regulation through the courts, he held 
(pp. 472-474) : 

Such a construction would, in my opinion, 
be at variance with the spirit as well as with the 
letter of the law, the great object of which 
was to provide for the public safety by impos- 
ing such restraints upon alien enemies as the 
chief executive magistrate of the United States 
might think necessary, and of which his par- 
ticular situation enabled him best to judge. 
It was certainly proper, and, in many cases, it 
might be highly beneficial to the public safety, 
to vest in the judiciary a power to enforce the 
ordinances of the President in every case 
which should be regularly brought before it. 
But to bring this power into action there must 
be a specific complaint against some particular 
individual, and a regular hearing of each case 
must be had. If no person will take upon 
himself the task of becoming an informer, 
at all times and under any circum.stances an 
unpleasant one, is the public safety to be 
jeopardized, however imminent the President 
may know the danger to be? Certainly, this 
never could have been the intention of the 
Legislature. If only judicial interference can 
be resorted to, it is most obvious that the 
means are altogether inadequate to the end 
for which the law meant to provide. But 
how can a construction so narrow as that con- 



36 

tended for consist with the unlimited powers 
conferred on the President? If he could not 
direct the marshal to confine alien enemies 
who should refuse to retire to any place which 
might be designated, or who should declare 
their adherence to the enemy, and a disposi- 
tion to support their interests, can it be said 
that he possesses the power to direct the con- 
duct to be observed on the part of the United 
States towards alien enemies, and the manner 
and degree of their restraint, and to establish 
any other regulations he might think proper 
in the premises, for the public safety? If he 
is confined to regulations which require the 
interposition and aid of the judiciary to give 
them effect, then this restriction of his author- 
ity must be deduced by mere construction 
from expressions as unqualified as the Legis- 
lature could have used. I do not feel myself 
authorized to impose limits to the authority 
of the executive m.agistrate which Congress, 
in the exercise of its constitutional powers, 
has not seen fit to im^pose. Nothing, in short, 
can be more clear to my mind, from an atten- 
tive consideration of the act in all its parts, 
than that Congress intended to make the 
judiciary auxiliary to the executive in effecting 
the great objects of the law; and that each de- 
partment was intended to act independently of 
the other, except that the former was to 
make the ordinances of the latter the rule of 
its decisions. 

The case was argued by the noted Philadelphia 
lawyer, Charles J. Ingersoll, against Alexander J. 
Dallas. 



37 

It is to be especially noted that nowhere in either of these 
opinions is there a trace of a doubt as to the constitu- 
tionality of the statute, and this notwithstanding emi- 
nent counsel, accustomed to appear before the United 
States Supreme Court, appeared in both cases. 

It further appears in Judge Brackenridge's opinion 
in the State case (p. 296) that Chief Justice Mar- 
shall, in another case (search for which has been 
made by the Government counsel in the case at 
bar without success), had sustained the President's 
power under this statute: 

A report has been read from a gazette of a 
decision of a court of the United States, 
Chief Justice Marshall and Judge Tucker 
composing that court — great names and in 
high station. This report, if correct, carries 
with it evidence that the executive authority 
was warranted in apprehending, etc., with- 
out the intervention of the judicial power. 

In addition to the above, Mr. Justice Iredell (of 
the United States Supreme Court), when charging 
the jury in 1799 in The Case of Fries, in the Circuit 
Court for the District of Pennsylvania (9 Fed. 
Cases, No. 5126), stated his views upholding the 
constitutionality of both the alien-enemy act and 
the alien act; and he very carefully pointed out 
that Congress, in passing these laws, was not pun- 
ishing criminal offenses, but was taking the neces- 
sary precautions to guard the country against war: 

(P. 831:) In most countries in Europe, I 
believe, an express passport is necessary for 
strangers. Where greater liberality is ob- 



38 

served, yet it is always understood that the 
Government may order away any alien whose 
stay is deemed incompatible with the safety 
of the country. Nothing is more common 
than to order away, on the eve of a war, all 
aliens or subjects of the nation with whom the 
war is to take place. Why is that done, but 
that it is deemed unsafe to retain in the 
country men whose prepossessions are natu- 
rally so strong in favour of the enemy that it 
may be apprehended they will either join in 
arms or do mischief by intrigue in his fa- 
vour? * * * 

(Pp. 831-832:) In cases Uke this it is ridicu- 
lous to talk of a crime; because perhaps the 
only crime that a man can then be charged 
with is his being born in another country and 
having a strong attachment to it. He is not 
punished for a crime that he has committed, 
but deprived of the power of committing one 
hereafter to which even a sense of patriotism 

may tempt a warm and misguided mind. 

* * * 

(P. 832 :) The opportunities during a war of 
making use of men of such a description are so 
numerous and so dangerous that no prudent 
nation would ever trust to the possible good 
behaviour of many of them. 

Further, Mr. Justice Story cited the statute in 
Brown v. United States (1814), 8 Cranch, 110, evi- 
dently without any doubt as to its constitutionality. 
So did Kent, C. J., in Clarke v. Morey (1813), 10 
Johnson, 69, 71. 



39 

We thus have four justices of the United States 
Supreme Court (Marshall, Washington, Iredell, and 
Story) and James Kent giving expressions of opinion 
on the statute without any intimation of doubt as to 
its constitutionality. 

The only other cases which appear to have arisen 
under the Alien Enemy act were Laverty v. Duplessis 
(1813), 3 Martin 42, in the Supreme Court of the 
State of Louisiana, and United States v. Laverty 
(1812), 8 Martin (U. S.) 733, in the District Court 
for the District of Louisiana in which Laverty 
arrested as an alien enemy was discharged on habeas 
corpus on proof of United States citizenship. 

in. 

The power of Congress over the persons and property 
of alien enemies resident in the United States in 
time of war is plenary and uncontrolled. It is 
derived from the power of Congress under the 
Constitution to declare war and to make rules con- 
cerning captures on land and water, as well as from 
the powers residing in the sovereign Nation under 
the common law, and under the law of nations. 

The war powers of the Constitution may be exer- 
cised to the extent that the safety of the Nation 
demands. As Madison said in The Federalist, No. 41, 
" It is in vain to oppose constitutional barriers to the 
impulse of self-preservation." Congress having power 
to declare war has, by necessary implication, conferred 
upon it the right to do such acts and to take such 
steps as in its judgment are proper and necessary to 
forward the war and to protect from enemies the 
people of the United States at home and in the field. 



40 

One of the measures of protection found by every 
nation to be most necessary in time of war is the 
guarding against internal enemies whose operations 
are more insiduous, and therefore, more dangerous 
to the common weal, in many cases, than are the 
active maneuvers of military forces. The very 
presence of enemy subjects in the land may consti- 
tute a potentiality of danger which must be guarded 
against, even before such persons become an active 
danger. Such persons may have been sent into the 
country for the very purpose of spreading sedition 
and of deceiving our own people by indirect propa- 
ganda and suggestion. An arm}^ of spies, incen- 
diaries, and propagandists ma}^ be more dangerous 
than an army of soldiers. 

The situation of the United States on April 6, 1917, 
when the President issued his proclamation for the 
regulation of alien enemies under Revised Statutes, 
4067, clearly demanded such action. In his &,ddress 
to Congress of April 2, 1917, the President stated 
that the German Government "has filled our unsus- 
pecting communities and even our offices of govern- 
ment with spies and set criminal intrigues everywhere 
afoot against our national unity of counsel, our peace 
within and without, our industries and our com- 
merce. Indeed it is now evident that its spies were 
here even before the war began; and it is unhappily 
not a matter of conjecture but a fact proved in our 
courts of justice that the intrigues which have more 
than once come perilously near to disturbing the 
peace and dislocating the industries of the country 



41 

have been carried on at the instigation, with the sup- 
port, and even under the personal direction of official 
agents of the Imperial Government accredited to the 
Government of the United States." 

The report of the Committee on Foreign Affairs, 
made to the House of Representatives April 4, 1917, 
accompanying the resolution declaring the existence 
of a state of war (Report No. 1, 65th Cong., 1st sess.), 
contains a list of 21 instances of improper activities 
of German officials, agents, and sympathizers in the 
United States during the European war. (Copy of 
this portion of the report is hereto attached as 
Appendix B.) 

The Report of the Attorney General of the United 
States for the year ending June 30, 1917, contains a 
long list of cases involving; such German agents and 
sympathizers, in eveiy one of which thus fai- tried 
convictions had been obtained. (See Appendix C of 
this brief.) 

The German War Code (standard translation, p. 85) 
approves of such activities. "Bribery of enemy 
subjects, acceptance of offers of treachery, utilization 
of discontented elements of population, support of 
pretenders, and the like, are permissible; indeed, 
international law is in no way opposed to the exploi- 
tation of crimes of thii^d parties." , 

Under such circumstances, it is very clear that not 
only had the Congress of the United States the power 
to put into operation such a statute as Revised Stat- 
utes, section 4067, but the existence and operation 
of such a statute was essential to the safety of the 



42 

Nation, and without it hostile enemy subjects inside 
of the United States could not be effectively sup- 
pressed. 

The war powers of Congress were concisely stated 
over a hundred " years ago by Mr. Gallatin in the 
House of Representatives (see Annals of Congress, 
5th Cong., 2nd Sess.,p. 1980, June 19, 1798) : '' Although 
Congress has not the power to remove alien friends, it 
can not be inferred that it had not the power to remove 
alien enemies — this last authority resulted from the 
power to make all laws necessary to carry into effect 
one of the specific powers given by the Constitution. 
Among these powers is that of declaring war, which 
includes that of making prisoners of war, and of 
making regulations with respect to alien enemies 
who are liable to be treated as prisoners of war. By 
virtue of that power, and in order to carry it into 
effect. Congress could dispose of the persons and 
property of alien enemies as it thinks fit, provided 
it be according to the laws of nations and to treaties." 

The statute, in giving to the President the power 
to frame regulations for the restraint of alien enemies, 
clearly gave him the power to order the summary 
arrest or internment of those alien enemies whose 
presence at large he found to constitute a danger to 
the peace and safety of the United States. It would 
entirely neutralize the effect of the statute to im- 
pose upon the exercise of a power so necessary to the 
effective administration of the statute any restric- 
tions such as right to a hearing before the courts or 
other official. Inasmuch as the mere presence of the 



43 

alien enemy in the country might well be found by the 
President to constitute a source of danger, it would 
be entirely futile to grant to such alien enemy a hear- 
ing to enable him to contravert the point as to 
whether his presence was or was not such source of 
danger. It is not only in the power of the President 
to act, but it is his duty to act, in such cases, frequently 
on suspicion, rather than on proven facts ; for the pur- 
pose of the ste,tute is largely preventive. War con- 
sists quite as much in preventing disaster from hap- 
pening as in punishing or inflicting disaster upon the 
foe. This has been very ably set forth by the House 
of Lords in Rexw Halliday (1917), (ex parte Zadig), L. R. 
(1917) A. C. 260. (See also L. R. (1916) 1 K. B. D., 
738.) This case involved a much more extreme 
statute than section 4067, since it arose under a regu- 
lation which authorized the internment in time of war 
of a British citizen of hostile origin or associations. 
The Lord Chancellor said (p. 269) : 

One of the most obvious means of taking 
precautions against dangers such as are enum- 
erated is to impose some restriction on the 
freedom of movement of persons whom there 
may be any reason to suspect of being dis- 
posed to help the enemy. It is to this that 
regulation 14b is directed. The measure is 
not punitive but precautionary. It was 
strongly urged that no such restraint should be 
imposed except as the result of a judicial in- 
quiry, and, indeed, counsel for the appellant 
went so far as to contend that no regulation 
could be made forbidding access to the sea- 
shore by suspected persons. It seems obvious 



44 

that no tribunal for investigating the question 
whether circumstances of suspicion exist war- 
ranting some restraint can be imagined less 
appropriate than a court of law. No crime is 
charged. The question is whether there is 
ground tor suspicion that a particular person 
may be disposed to help the enemy. 

Lord Atkinson said (pp. 271, 273, 275) : 

However precious the personal liberty of 
the subject may be, there is something for 
which it may well be, to some extent, sacri- 
ficed by legal enactment, namely, national suc- 
cess in the war, or escape from national plun- 
der or enslavement. * * * 

One of the most effective ways of preventing 
a man from communicating with the enemy or 
doing things such as are mentioned in section 
i, subsection 1 (a) and (c), of the statute is to 
imprison or intern him. In that as in almost 
every case where preventive justice is put in 
force some suffering and inconvenience may be 
' caused to the suspected person. That is inevi- 
table. But the suffering is, under this statute, 
inflicted for something much more important 
than his liberty or convenience, namely, for 
securing the public safety and defense of the 
realm. It must not be assumed that the 
powers conferred upon the Executive by this 
statute will be abused. * * * 

And as preventive justice proceeds upon the 
principle that a person should be restrained 
from doing something which, if free and un- 
fettered, it is reasonably probable he would do, 
it must necessarily proceed in all cases, to some 
extent, on suspicion or anticipation as distinct 



45 

from proof. If a person can be of hostile ori- 
gin or association it is, I think, impossible to 
say that, if free and unfettered, it would not be 
reasonably probable that he would communi- 
cate with the enemy, or obtain information 
for the purposes mentioned in paragraph (a), 
or spread the false or other reports mentioned 
in paragraph (c), or do some of the other 
things mentioned in other paragraphs of that 
subsection. The public safety and the de- 
fense of the realm might be prejudicially 
affected if he did any of these things. 

The power to arrest and intern alien enemies is a 
power inhering in the sovereignty of everv^ nation, 
and the right to exclude such ahen enemies from 
recourse to the courts, and especialty from the right 
to release on habeas corpus, is inherently necessary 
for the protection of the sovereignty. 

In England, such alien enemies interned have, 
during the present war, been held by the courts to 
be prisoners of war. See The King v. Superintendent 
of Vine Street Police Station, 1915, {ex parte Liebmann), 
1 Law Reports, 1916, King's Bench Division, 268, 
in which Bailhache, J., said (p. 275) : 

This war is not being carried on by naval 
and military forces only. Reports, rumours, 
intrigues play a large part. Methods of 
communication with the enemy have been 
entirely altered and largely used. I need 
onl}^ refer to wireless telegraphy, signaling 
b}^ lights, and the employment on a scale 
hitherto unknown of carrier pigeons. Spy- 
ing has become the hall-mark of German 



46 

"kultur." In these circumstances a German 
civilian in this country may be a danger in 
promoting unrest, suspicion, doubts of vic- 
tory, in communicating intelligence, in assist- 
ing in the movements of submarines and 
Zeppelins — a far greater danger, indeed, than 
a German soldier or sailor. 

I have come to the conclusion that a Ger- 
man subject resident in the United Kingdom, 
who in the opinion of the Executive Govern- 
ment is a person hostile to the welfare of this 
country, and is on that account interned, 
ma}^ properly be described as a prisoner of 
war, although not a combatant or a spy. 
* * * 

* * * These courts are specially charged 
to safeguard the liberty of the subject as one 
of their most sacred duties. The courts owe 
that duty not only to the subjects of His 
Majest}^, but also to all persons within the 
realm who are under His Majesty's protection 
and entitled to resort to these courts to secure 
for them an}^ rights which they may have, 
and this whether they are aliens or alien ene- 
mies. I think it right, therefore, to add that, 
deeply impressed as I am with the sanctity 
of the liberty of the subject, I can not forget 
that above the liberty of the subject is the 
safety of the realm, and I should be prepared 
to hold, as at present advised, that when the 
internment of an alien enemy is considered 
by the Executive Government charged with 
the protection of the realm, desirable in the 
interests of the safety of the realm, and the 
Government thereupon interns such alien 
enemy, the action of the Government in so 



47 

doing is not open to review by the courts of 
law by habeas corpus. 

And Low, J., said (p. 277-8): 

* * * In my opinion, to show that a man 
is a prisoner of war it is not necessary for him 
to have been an actual combatant. War at 
the present moment is not, as it was in olden 
times, confined to easily ascertained limits. 
The inventions and discoveries of recent years, 
and especially the existing means of communi- 
cation, have so widened the fields of possible 
hostility that there is scarcely any limit on the 
earth, in the air, or in the waters which it is 
possible to put upon the exercise of acts of 
hostility^ and real danger to the realm may 
therefore exist, although impossible of dis- 
covery, at distances far from where the actual 
clash of arms is taking place. In addition to 
this, methods of warfare or ancilliary to warfare 
have come into practice on the part of our foes 
which involve the honeycombing the realm 
with enemies, not only for the purpose of ob- 
taining and dispatching information, but for 
purposes directly helpful to the carrying out 
of enterprises either actually warlike or emi- 
nently calculated to assist the successful prose- 
cution of war. In a contest with people who 
consider that the acceptance of hospitahty 
connotes no obligation and that no blow can be 
foul it would, I think, be idle to expect the 
executive to wait for proof of an overt act or 
for evidence of an evil intent. In my opinion 
this court is entitled to take judicial cognizance 
of these matters and, in a question so greatly 



48 

involving the security of the realm, to say that 
where the Crown, in the exercise of its un- 
doubted right and duty to guard the safety of 
all, represents to this court that it has become 
necessary to restrain the liberty of an alien 
enemy within the kingdom, and treat him as a 
prisoner of war, he must be regarded for the 
purposes of a writ of habeas corpus as a prisoner 
of war. 

IV. 

The plenary power of the Congress of the United 
States to take the persons and property of resident 
alien enemies lias been expressly upheld by the 
Supreme Court. 

The plenary power of this Government to take the 
persons and property of enemies is expressly upheld 
by Marshall, C. J., in Brown v. United States (1814). 
8 Cranch 110, pp. 122, 123: 

Respecting the power of Government no 
doubt is entertained. That war gives to the 
sovereign full right to take the persons and 
confiscate the property of the enemy wherever 
found, is conceded. The mitigations of this 
rigid rule, which the humane and wise policy 
of modern times has introduced into practice, 
will more or less affect the exercise of this 
right, but can not impair the right itseK. 
That remains undiminished, and when the 
sovereign authority shall chuse to bring it 
into operation, the judicial department must 
give effect to its will. * * * \Yar is not 
an absolute confiscation of this property, but 
simply confers the right of confiscation. 



49 

At p. 125: 

* * * It may be considered as the opinion 
of all who have written on the jus belli that 
war gives the right to confiscate, but does not 
itself confiscate the property of the enemy; 
and their rules go to the exercise of this right. 
The Constitution of the United States was 
framed at a time when this rule, introduced 
by commerce in favor of moderation and 
humanity, was received throughout the 
civilized world. In expounding that Consti- 
tution, a construction ought not lightly to 
be admitted which would give to a declara- 
tion of war an effect in this country it does 
not possess elsewhere, and which would fetter 
that exercise of entire discretion respecting 
enemy property, which may enable the Gov- 
ernment to apply to the enemy the rule that 
he applies to us. 

And Marshall clearly considered that the statute 
now in question relating to alien enemies was in 
entire conformity to the law and to the Constitution, 
for he expressly cites this statute in support of his 
argument that it was not the declaration of war, 
but the act of Congress which brought into force the 
absolute and uncontrolled rights which a govern- 
ment possesses over the persons and property of 
enemies. 

^Var gives an equal right over persons and 
property: and if its declaration is not con- 
sidered as prescribing a law respecting the 
person of an enemy found in our country, 
neither does it prescribe a law for his property. 



50 

The act concerning alien enemies, which con- 
fers on the President very great discretionery 
powers respecting their persons, affords a 
strong impHcation that he did not possess 
those powers by virtue of the declaration of 
war (p. 126). 

And Marshall further pointed out that the question 
of what should be done with enemy property (and 
hence, of course, with enemy persons) was a question 
proper for the consideration of the Legislature alone 
and not for the judiciary: 

When war breaks out, the question, what shall 
be done with enemy property in our country, 
is a question rather of policy than of law. 
The rule which we apply to the property of 
our enemy, will be applied by him to the 
property of our citizens. Like all other ques- 
tions of policy, it is proper for the considera- 
tion of a department which can modify it at 
will; not for the consideration of a depart- 
ment which can pursue only the law as it is 
written. It is proper for the consideration of 
the Legislature, not of the Executive or judi- 
ciary (pp. 128, 129). 

Hence, in the case at bar. Congress having acted 
and having placed in the hands of the President the 
power which Congress possessed 'Ho take the per- 
sons" of alien enemies whom the President should 
deem a danger to the peace and safety of the United 
States to be at large, it is not proper for the judiciary 
to interfere with the form of exercise of congressional 
power which Congress ordained. 



51 

Rawle's View of the Constitution (1825), which 
was the earliest American book on constitutional 
law, says, page 87: 

Thus if war should break out between the 
United States and the country of which the 
alien resident among us is a citizen or subject, 
he becomes on general principles an alien 
enemy, and is liable to be sent out of the 
country at the pleasure of the General Govern- 
ment, or laid under reasonable restraints 
within it, and in these respects no State can 
interfere to protect him. 

See also Kent's Commentaries (1829), Volume I, 
pages 56-59; Story's Commentaries on the Consti- 
tution (1835), section 1177 (see also note in Cooley's 
Edition) ; Dana's Wheaton's International Law 
(1866), section 304 and note; Halleck's International 
Law, page 315; Woolsey's International Law (1867), 
section 118. 

Justices Chase and Wilson, in Ware v. Hylton 
(1796), 3 Dallas, 199, 226-228, 281, had admitted 
the unlimited right to confiscate the property of 
enemies during war as an incident of the powers and 
rights of war, Chase saying, ''This right originates 
from self-preservation;" and even before the Brown 
case, Justice Story had stated in Fairfaxes Devisee v. 
Hunter's Lessee (1813), 7 Cranch, 603, 620, that: 
"During the war the property of alien enemies is 
subject to confiscation jure belli.''' The unfettered 
power of Congress jjelative to enemies is also well 
shown in the series of cases arising under the various 
confiscation acts during the Civil War, the most 



52 

important of which are collected in Appendix D of 

this brief. 

V. 

The exercise by Congress of its war powers with refer-, 
ence to resident alien enemies is not so restricted 
by the due-process clause of the fifth amendment 
as to entitle an alien enemy to recourse to the 
courts in time of war. 

As was said in Murray's Lessee v. The Hohoken 
Land Company (1855), 18 How. 272, 277, to ascertain 
what process enacted by Congress is due process ^'we 
must look to those settled usages and modes of pro- 
ceeding existing in the common and statute law of 
England, before the emigration of our ancestors, and 
which are shown not to have been unsuited to their 
civil and political condition by having been acted 
on by them after the settlement of this country." 
The rights which are guaranteed the resident of the 
United States b}^ the fifth amendment may vary in 
time of war from those which are guaranteed to hini 
in time of peace. As was said by the court in 
Butler V. Perry (1915), 240 U. S. 328, regarding the 
thirteenth amendment: ''The great purpose in view 
was liberty under the protection of effective Govern- 
ment, not the destruction of the latter by depriving 
it of essential powers." Constitutional guarantees 
extended to the individual must, under certain cir- 
cmnstanees, be subordinated to the ''power of the 
public to guard itself against imminent danger." 
See Jacobsen v. Massachusetts (fl905), 197 U. S. 11, 
29; Angelus v. Sullivan (C. C. A., Second Circuit, 1917, 



53 

a case involving the constitutionalit}^ of the draft 
law). 

All our liberties so carefully guarded by the first 
ten amendments to the Constitution are held subject 
to the all-embracing war power of Congress. Confis- 
cation statutes passed during the Civil War were 
assailed in Miller v. United States (1870), 11 Wall. 
268, as contrary to the fourth and fifth amendments. 
Touching the contention made in that behalf, the 
court said : 

But if the assumption of the plaintiff in 
error is not well made, if the statutes were 
not enacted under the municipal power of 
Congress to legislate for the punishment of 
crimes against the sovereignty of the United 
States, if, on the contrary, they are an exer- 
cise of the war powers of the Government, it 
is clear they are not affected by the restric- 
tions imposed by the fifth and sixth amend- 
ments. This we understand to have been 
conceded in the argument. 

The question, therefore, is whether the action 
of Congress was a legitimate exercise of the war 
power. The Constitution confers upon Congress 
expressly power to declare war, grant letters of 
marque, and reprisal, and make rules respecting 
captures on land and water. Upon the exercise 
of these powers no restrictions are imposed. Of 
course the power to declare war involves the 
power to prosecute it by all means and in 
any manner in which war may be legitimately 
prosecuted (p. 304, 305). 



54 

In Stewart v. Kahn (1870), 11 Wall. 493, the court 
again said: 

Congress is authorized to make all laws 
necessary and proper to carry into effect the 
granted powers. The measures to be taken 
in carrying on war and to suppress insurrec- 
tion are not defined. The decision of all 
such questions rests wholly in the discretion 
of those to whom the substantial powers 
involved are confided by the Constitution. 

In the latter case the power is not limited 
to victories in the field and the dispersion of 
the insurgent forces. It carries with it in- 
herently the power to guard against the 
immediate renewal of the conflict, and to 
remedy the evils which have arisen from its 
rise and progi'ess. This act falls within the 
latter category. The power' to pass it is 
necessarily implied from the powers to make 
war and suppress insurrections, (pp. 506, 507). 

So far as aliens are concerned, even in time of 
peace, the rights to which they are entitled under 
the due-process clause are very few. See Turner v. 
Williams (1904), 194 U. S. 279. 

Repeated decisions of this court have deter- 
mined that Congress has the power to exclude 
aliens from the United States; to prescribe 
the terms and conditions on which they may 
come in; to establish regulations for sending 
out of the country such aliens as have entered 
in violation of law, and to commit the enforce- 
ment of such conditions and regulations to 
executive officers; that the deportation of an 
alien who is found to be here in violation of 



56 

law is not a deprivation of liberty without due 
process of law, and that the provisions of the 
Constitution securing the right of trial by jury 
have no application (pp. 289, 290). 

and United States v. Ju Toy (1905), 198 U. S. 253: 

If, for the purpose of argument, we as- 
sume that the Fifth Amendment applies 
to him and that to deny entrance to a 
citizen is to deprive him of liberty, we never- 
theless are of opinion that with regard to him 
due process of law does not require a judicial 
trial. That is the result of the cases which we 
have cited and the almost necessary result of 
the power of Congress to pass exclusion laws. 
That the decision may be intrusted to an 
executive officer and that his decision is due 
process of law was affirmed and explained in 
Nishimura Ekiu v. United States, 142 U. S. 
651, 660, and in Fong Yue Ting v. United 
States, 149 U. S. 698, 713. * * * (p. 263) 

See also esp. Wong Wing v. United States 
(1896), 163 U. S. 228, 237. 

In The Chinese Exclusion Case {Chae Chan Ping v. 
United States) (1889), 130 U. S. 581, p. 606, the court 
summed up the power of the Nation relative to aliens 
as follows, and it is highly important to note that the 
court stated that the exclusion of foreigners (and 
therefore, of course, then* restraint in case exclusion 
should be impossible) would be rendered even more 
obvious and pressing in case of the existence of war: 
To preserve its independence, and give se- 
curity against foreign aggression and en- 



56 

croachment, is the highest duty of every na- 
tion, and to attain these ends nearly all other 
considerations are to be subordinated. It 
matters not in what form such aggi^ession and 
encroachment come, whether from the foreign 
nation acting in its national character or from 
vast hordes of its people crowding in upon us. 
The government, possessing the powers which 
are to be exercised for protection and security, 
is clothed with authority to determine the 
occasion on which the powers shall be called 
forth; and its determination, so far as the 
subjects affected are concerned, are necessarily 
conclusive upon all its departments and offi- 
cers. If, therefore, the Government of the 
United States, through its legislative depart- 
ment, considers the presence of foreigners of a 
different race in this country, who will not 
assimilate with us, to be dangerous to its peace 
and security, their exclusion is not to be stayed 
because at the time there are no actual hos- 
tilities with the nation of which the foreigners 
are subjects. The existence oj war would 
render the necessity oj the proceeding only more 
obvious and pressing. 

See also Moore's Digest of International Law, 
volume 4, section 550. ^ 

^ In England the right to remove aliens in time of peace 
has been exercised by statute in 1793, in 1848, and in recent 
times (prior to the war) . (See Taswell-Langmead's English 
Constitutional History, p. 667 note; Halsbury's Laws of 
England, Vol. I, sec. 705; Musgrove v. Chun Teeong Toy 
(1891, A. C. 272, cited in Michigan Law Review (1911), Vol. 
IX, p. 420.) 



57 
VI. 

Due process of law, under the common law, gave to 
a resident alien enemy no rights which he could 
maintain in the courts. He had no rights or 
privileges, except such as arose from a license or 
other form of protection which the Sovereign chose 
to grant; his person or property could be seized 
and he had no redress. 

ENGLISH CASES. 

Blackstone (Vol. I, p. 372) said: ''Alien enemies 
have no rights, no privileges, unless by the King's 
special favor, during the time of war." 

Lord Halsbur3^'s Laws of England (1907), Volume 
I, page 310, says: 

Sec. 682. An alien enemy had no rights at 
all at common law; he could be seized and im- 
prisoned and could have no advantage of the 
law of England, nor obtain redress for any 
wrong done to him here. But it has for long 
been the custom to exonerate alien enemies 
who have been allowed to remain in this 
coimtry and are of good behavior from the 
disabilities of enemies. 

In Solicitors Journal (Aug. 8, 1914), volume 58, 
page 751, in an article on ''The Legal Status of an 
Alien Enemy," it is said: 

Formerly an alien enemy lost his legal 
rights; if found here after a declaration of 
war, he could be seized and imprisoned, and 
could take out no legal process for redress 
against any wrong done to him in this country 
(per Lord EUenborough in Roberts v. Hardy 
(1815), 3 M. & S., p. 536). But it is now 



58 

generally regarded as sound law by inter- 
national jurists that an alien enemy who re- 
mains in England and behaves peaceably is — in 
the absence of a general order for the expulsion 
of his compatriots — regarded as under the 
King's protection and accorded the same pro- 
tection as one of the King's subjects (Hall's 
International Law, 5th ed., p. 395). 

The whole subject is exhaustively treated in Po7'iet 
V. Freudenberg (1915), 1 L. R. (1915) K. B. D. 857, per 
Lord Chief Justice Reading (pp. 865 et seq.): 

Alien enemies have no civil rights or privi- 
leges unless they are here under the protec- 
tion and by permission of the Crown (Black- 
stone, 21st ed., Vol. I, ch. 10, p. 372). Indeed, 
under the ancient common law, ''debts and 
goods found in this realm belonging to alien 
enemies belong to the King and may be seized 
by him." * * * Whether the right of the 
Sovereign to confiscate any of the alien enemies' 
goods or debts in this realm was ever exercised 
or not (see Wolff v. Oxholm (1817), 6 M. & S. 
92, at p. 102, per Lord Ellenborough) there can 
be no doubt about the existence of the right 
(see Attorney General v. Weeden (1699), Parker, 
267). 

In The King v. Superintendent of Vine Street Police 
Station (ex parte Liehmann) (1915), 1 L. R. (1916) 
K. B. D. 268, 278, the general principle is stated by 
Low, J., that — 

At common law an alien enemy had no 
rights, and he could be seized and imprisoned 



59 

and could have no advantage of the law of 
England, 

citing Sylvester's Case (1702), 7 Mod. 150, which held 

that — 

If an alien enemy come into England with- 
out the Queen's protection, he shall be seized 
and imprisoned by the law of England, and 
he shall have no advantage of the law of 
England, nor for any wrong done to him here, 
but if he has a general or a special protection, 
it ought to come of his side in pleading. 

That at common law, in England, an alien enemy 
had no rights to sue in the courts, see (1589) Owen, 
45, Cro. Eliz. 142; Co. Litt. 129a; Gilbert's Hist. 
Common Pleas, 205; Brandon v. Nesbit (1794), 6 
T. R. 23. A relaxation of the general rule was allowed 
in cases of alien enemies who were commorant in Eng- 
land by license or permission of the Crown, or who 
had been promised protection by the Crown, but in 
such cases the burden of proving such license, 
promise, or protection was on the alien. McConnell 
v. Hector (1802), 3 Bos. & P. 113; Boulton v. 'Dobree 
(1808), 2 Camp. 163; Alciatar v. Srnith (1812), 3 
Camp. 245; Alsenius v. Nygren{1854:), 4 El. & Bl. 217. 
But even in the latter cases there is always a limi- 
tation to the effect that the alien enemy only has 
such right in the court, while he is not actually 
hostile, while he is of good behavior, ''not molesting 
the Government." 

Thus, in Wells v. Williams (1697), 1 Lord Ray- 
mond, 282, 1 Salk. 46 (see case as explained in Law 



60 

Magazine and Review (1915), vol. 40, p. 215), it 
was said : 

Though the plaintiff came here since the 
war, yet if he has continued here by the 
King's leave and protection ever since, with- 
out molesting the Government or being molested 
by it, he may be allowed to sue, for that is 
consequent to his being in protection. (Italics 
ours. 

See also Daubigny v. Davallon (1796), 2 Anstruther, 
462,467: 

Alien enemies in England, who were there in a 
hostile capacity, either by reason of being prisoners 
of war, or by reason of not having the King's pro- 
tection, had no rights in the courts at all. 

Prisoners of war could not sue out habeas corpus. 

Furly V. Newnham (1780), 2 Douglas, 419. 

Rex V. Schiever (1759), 2 Burrow, 765. (In 
this case, England being at war only with 
France, the defendant was a Swede serving 
on a French privateer.) 

< The Case of Three Spanish Sailors (1779), 
2 W. Blackstone, 1324. The court, by Gould, 
Blackstone, and Nares, Justices, held: 

These men upon their own showing are 
alien enemies and prisoners of war, and there- 
fore not entitled to any of the privileges of 
Englishmen, much less to be set at liberty on 
a habeas corpus. 

See also King v. Despardo (1807), 1 Taunton, 
25; Maria v. Hall, (1807) 1 Taunton, 32. 
A prisoner of war could sue in the courts on a 
contract only in case he had not the "permanent 



61 

character of alien enemy" — Sparenburgh v. Banna- 
tyne (1797), 1 Bos. & P. 163— in which case Chief 
Justice Eyre held that the prisoner being a German 
serving on a Dutch ship (England being at war with 
Holland, but not with Germany), could sue, inas- 
much as he only had the 'temporary character" of 
enemy. Eyre said (p. 170) : 

I take the true ground upon which the plea 
of alien enemy has been allowed is, that a man, 
professing himself hostile to this country, and 
in a state of war with it, can not be heard if 
he sue for the benefit and protection of our 
laws in the courts of this countiy. 

Both in England and in Canada during the present 
war, interned alien enemies have been held to be 
prisoners of war and have been denied writs of 
habeas corpus. 

The King v. Superintendent of Vine Street 
Police Station; {ex parte Liebmann) 14 R. 1916, 
K. B. D. 268. 

Re Gusetu (Superior Court Province of 
Quebec, District of Montreal, 1915), 24 
Canadian Criminal Cases, 427, 429: 

During the existence of the war the courts 
should not be called upon to do anything 
which might in any way interfere with the 
actions of those specially charged with the 
safety of the country. Considerations of pub- 
lic welfare must override everything else. 
* * * 

On his own showing the petitioner is an 
alien enemy interned as a prisoner of war, 
because in the judgment of the authorities 



62 

charged with the preservation of the security, 
defense, peace, order and welfare of Canada, 
it is not consistent with the public safety that 
he should be allowed at large. An alien enemy 
has no rights under the common law of Eng- 
land and the writ of habeas corpus is a pre- 
rogative writ by which the King has a right 
to inquire into the causes for which any of 
his subjects are deprived of their liberty. 
Halsbury's Laws of England, vol. 1, par. 682; 
vol. 10, par. 90. 

AMERICAN CASES. 

American courts have followed the English in their 
decisions on the rights of enemies resident in the 
United States to sue in the civil courts, and have al- 
lowed such rights only to an enemy resident here who 
had the protection and license of the Government and 
while he was at large and not "adhering to the 
enemy." 

See Clarke v. Morey (1813), 10 Johnson's Rep. 
(N. Y.) 69, 72, per Kent, C. J.: 

In the case before us, we are to take it for 
granted (for the suit was commenced before 
the present war) that the plaintiff came to 
reside here before the war, and no letters of 
safe conduct were, therefore, requisite, nor any 
license from the President. The license is 
implied by law and the usage of nations; if he 
came here since the war, a license is also im- 
plied, and the protection continues until the 
Executive shall think proper to order the 
plaintiff out of the United States; but no such 
order is stated or averred. This is the evident 
construction of the act of Congress of the 



63 

6th July, 1798, entitled "An act respecting 
alien enemies." (Sess. 1, Cong. 5, ch. 73.) 
Until such order, the law grants permission to 
the alien to remain, though his sovereign be at 
war with us. A lawful residence implies pro- 
tection, and a capacity to sue and be sued. A 
contrary doctrine would be repugnant to 
sound policy, no less than to justice and 
humanity. 

See also Bradwell v. Weeks (1815), 13 Johnson 1, 4, 
per Yates, J. : 

In the case of Clarke v. Morey (10 Johns. 
Rep. 72) it is stated by the Supreme Court 
that the evident construction of the act of 
Congress of the 6th July, 1798, is, that, where 
an alien comes to reside here during peace, no 
letters of safe conduct are requisite, nor any 
license from the President; that the license 
is implied by the law and the usage of nations; 
that, if he came here even since the war, a 
license would be implied, and the protection 
to him would be continued, until the Executive 
should think proper to order him out of the 
United States. 

In this case, it does not appear that the 
intestate has ever, in any way, been molested 
by any order of Government, but has con- 
tinued to reside here, by permission, as before 
stated, until his decease. I can see no reason 
why the rights he enjoyed, as to the destina- 
tion of his personal property, if he had died 
during peace, should not (while he thus con- 
tinued) be secured to him during war. 

See also Bagwell v. Babe (1823), 1 Randolph 272, 
276. 



64 

And Sewall, C. J., said, in HutchinsoriY. Brock (1814), 
11 Mass. 119, 122: 

An enemy to our sovereign shall not have 
the use or advantage of his laws, * * * 
On the other hand, the citizen or subject of a 
foreign country or sovereign, against whom we 
declare war, who is residing with us when war 
commences, and who is permitted after- 
wards to reside, and be at large, under the 
protection of our laws, is enabled by his 
residence, and by virtue of this protection, 
to maintain civil actions, notwithstanding 
the war, and any supposed duty of natural 
allegiance. (Italic ours.) 

None of the cases, however, intimate that, when 
the protection of this Government is withdrawn from 
the alien enemy residing here, he has any rights at 
all in the courts or otherwise as against such action 
as the Government may see fit to take regarding him. 

CONCLUSION. 

It thus appears from both the English and American 
cases that due process at common law not only did not 
require court hearing or the privilege of habeas corpus 
on behalf of a resident alien enemy, but that when he 
was a prisoner or interned or hostile it did not even 
permit such hearing or writ on his behalf. In other 
words, an alien enemy had only such rights as the 
sovereign chose to grant. 

That the power of Congress over the persons of 
alien enemies is plenary, has been expressly held 
by the Supreme Court of the United States. The 



65 

constitutionality of the statute in question is there- 
fore clear. It is, in fact, so clear as not even to 
need the application of the doctrine so well set 
forth recently by Justice Meredith in the High 
Division of the Supreme Court of Ontario, in 1915, 
in Re Beranek (24 Canadian Criminal Cases, 252), 
in stating the attitude which courts of justice will 
maintain during war times: 

* * * It should be p'ain to everyone that 
in the stress and danger to the life of any na- 
tion in war, the courts should be exceeding 
careful not to hamper the action of those espe- 
cially charged with the safety of the nation; 
careful, among other things, not to take up 
the time and attention of those who should 
be fighting the enemy in the field, in fighting 
lawsuits in the law courts over private rights. 
It is not a time when the prisoner is to have 
the benefit of the doubt; it is a time when, in 
all things great and small, the country must 
have every possible advantage; a time when 
it must be the general safety first in all things 
always; until the final victory is won; even 
though individuals may suffer meanwhile. 
Private wrongs can be righted then; while 
final defeat would not only prevent that but 
bring untold disasters to all. (p. 254.) 

Respectfully submitted. 

Charles Warren, 

Assistant Attorney General of the United States, 

January, 1918, 



APPENDIX A. 

REVISED STATUTES, SECTIONS 4067-4070. 

Sec. 4067. Whenever there is a declared war between 
the United States and any foreign nation or Government, 
or any invasion or predatory incursion is perpetrated, 
attempted, or threatened against the territory of the United 
States, by any foreign nation or Government, and the 
President makes public proclamation of the event, all 
natives, citizens, denizens or subjects of the hostile nation 
or Government, being males of the age of fourteen years 
and upward, who shall be within the United States, and 
not actually naturalized, shall be liable to be apprehended, 
restrained, secured, and removed, as alien enemies. The 
President is authorized, in any such event, by his proclama- 
tion thereof, or other pubUc act, to direct the conduct to be 
observed, on the part of the United States, toward the 
aliens who become so liable; the manner and degree of the 
restraint to which they shall be subject, and in what cases, 
and upon what security their residence shall be permitted, 
and to provide for the removal of those who, not being per- 
mitted to reside within the United States, refuse or neglect 
to depart therefrom; and to establish any other regulations 
which are found necessary in the premises and for the 
public safety. 

Sec. 4068. When an alien who becomes liable as an 
enemy, in the manner prescribed in the preceding section, 
is not chargeable with actual hostihty, or other crime 
against the public safety, he shall be allowed, for the re- 
covery, disposal, and removal of his goods and effects, and 
for his departure, the full time which is or shall be stipu- 
lated by any treaty then in force between the United States 
and the hostile nation or Government of which he is a 
native citizen, denizen, or subject; and where no such 
treaty exists, or is in force, the President may ascertain 
and declare such reasonable time as may be consistent 
with the public safety, and according to the dictates of 
humanity and national hospitality. 

(66) 



67 

Sec. 4069. After any such proclamation has been made, 
the several courts of the United States, having criminal 
jurisdiction, and the several justices and judges of the 
courts of the United States, are authorized, and it shall be 
their duty, upon complaint against any alien enemy resi- 
dent and at large within such jurisdiction or district, to the 
danger of the public peace or safety, and contrary to the 
tenor or intent of such proclamation, or other regulations 
which the President may have established, to cause such 
alien to be duly apprehended and conveyed before such 
court, judge, or justice; and after a full examination and 
hearing on such complaint, and sufficient cause appearing, 
to order such alien to be removed out of the territory of the 
United States, or to give sureties for his good behavior, or 
to be otherwise restrained, conformably to the proclama- 
tion or regulations established as aforesaid, and to imprison 
or otherwise secure such alien until the order which may be 
so made shall be performed. 

Sec. 4070. When an alien enemy is required by the Presi- 
dent, or by order of any court, judge, or justice, to depart 
and to be removed, it shall be the duty of the marshal of the 
district in which he shall be apprehended, to provide there- 
for, and to execute such order in person, or by his deputy, 
or other discreet person to be employed by him, by causing 
a removal of such alien out of the territory of the United 
States; and for such removal the marshal shall have the 
warrant of the President, or of the court, judge, or justice 
ordering the same, as the case may be. 



APPENDIX B. 

(Extract from Report No. 1, House of Representatives, 65th Cong. 1st sess.) 

IMPROPER ACTIVITIES OF GERMAN OFFICIALS IN THE 
UNITED STATES. 

Since the beginning of the war German officials in the 
United States have engaged in many improper activities in 
violation of the laws of the United States and of their obliga- 
tions as officials in a neutral country. Count von Bern- 
storff, the German ambassador, Capt. von Papen, military 
attache of the embassy, Capt. Boy-Ed, naval attache, as 
well as various consular officers and other officials, were 
involved in these activities, which were very widespread. 

The following instances are chosen at random from the 
cases which have come to the knowledge of the Government : 

I. By direct instructions received from the foreign office 
in Berlin the German Embassy in this country furnished 
funds and issued orders to the Indian independence com- 
mittee of the Indian NationaUst Party in the United States. 
These instructions were usually conveyed to the committee 
by the mihtary information bureau in New York (Von Igel) 
or by the German consulates in New York and San Francisco. 

Dr. Chakrabarty, recently arrested in New York City, 
received, aU in all, according to his own admission, some 
$60,000 from Von Igel. He claims that the greater portion 
of this money was used for defraying the expenses of the 
Indian revolutionary propaganda in this country, and, as he 
says, for educational purposes. While this is in itself true, it 
is not aU that was done by the revolutionists. They have 
sent representatives to the Far East to stir up trouble in 
India and they have attempted to ship arms and ammunition 
to India. These expeditions have failed. The German 
Embassy also employed Ernest T. Euphrat to carry instruc- 
tions and information between Berlin and Washington under 
an American passport. 

II. Officers of interned German warships have violated 
their word of honor and escaped. In one instance the 
German consul at Richmond furnished the money to pur- 
chase a boat to enable six warrant officers of the steamer 
Krowprinz Wilhelm to escape after breaking their parole. 

(68) 



69 

III. Under the supervision of Capt. von Papen and 
Wolf von Igel, Hans von Wedell, and, subsequently, Carl 
Ruroede, maintained a regular office for the procurement of 
fraudulent passports for German reservists. These opera- 
tions were directed and financed in part by Capt. von 
Papen and Wolf von Igel. Indictments were returned, 
Carl Ruroede sentenced to the penitentiary, and a number 
of German officers fined. Von WedeU escaped and has 
apparently been drowned at sea. Von Wedell's operations 
were also known to high officials in Germany. When Von 
Wedell became suspicious that forgeries committed by him 
on a passport application had become known, he conferred 
with Capt. von Papen and obtained money from him where- 
with to make his escape. 

IV. James J. F. Archibald, under cover of an American 
passport and in the pay of the German Government through 
Ambassador Bernstorff, carried dispatches for Ambassador 
Dumba and otherwise engaged in unneutral activities. 

V. Albert Sanders, Charles Wunnenberg, and others, 
German agents in this country, were engaged, among other 
activities, in sending spies to England equipped with Amer- 
ican passports, for the purpose of securing military informa- 
tion. Several such men have been sent. Sanders and 
Wunnonberg have plead guilty to indictments brought 
against them in New York City, as has George Voux Bacon, 
one of the men sent abroad by them. 

VI. American passports have been counterfeited and 
counterfeits found on German agents. Baron von Cupen- 
berg, a German agent, when arrested abroad, bore a counter- 
feit of an American passport issued to Gustav C. Roeder; 
Irving Guy Ries received an American passport, went to 
Germany, where the police retained his passports for 24 
hours. Later a German spy named Carl Paul Julius Hensel 
was arrested in London with a counterfeit of the Ries pass- 
port in his possession. 

VII. Prominent officials of the Hamburg-American Line, 
who, imder the direction of Capt. Boy-Ed, endeavored to 
provide German warships at sea with coal and other suppUes 
in violation of the statutes of the United States, have been 
tried and convicted and sentenced to the penitentiary. 
Some 12 or more vessels were involved in this plan. 



70 

VIII. Under the direction of Capt. Boy-Ed and the 
German consulate at San Francisco, and in violation of our 
law, the steamships Sacramento and Mazatlan carried sup- 
plies from San Francisco to German war vessels. The 
Olsen and Malioney, which was engaged in a similar enter- 
prise, was detained. The money for these ventures was 
furnished by Capt. Boy-Ed. Indictments have been re- 
turned in connection with these matters against a large 
number of persons. 

IX. Werner Horn, a lieutenant in the German Reserve, 
was furnished funds by Capt. Franz von Papen and sent 
with dynamite under orders to blow up the International 
Bridge at Vanceboro, Me. He was partially successful. 
He is now under indictment for the unlawful transportation 
of dynamite on passenger trains and is in jail awaiting trial 
following the dismissal of his appeal by the Supreme Court. 

X. Capt. von Papen furnished funds to Albert Kalt- 
schmidt, of Detroit, who is involved in a plot to blow up a 
factory at Walkerville, Canada, and the armory at Windsor, 
Canada. 

XI. Robert Fay, Walter Scholtz, and Paul Daeche have 
been convicted and sentenced to the penitentiary and three 
others are under indictment for conspiracy to prepare bombs 
and attach them to allied ships leaving New York Harbor. 
Fay, who was the principal in this scheme, was a German 
soldier. He testified that he received finances from a Ger- 
man secret agent in Brussels, and told Von Papen of his 
plans, who advised him that his device was not practicable, 
but that he should go ahead with it, and if he could make 
it work he would consider it. 

XII. Under the direction of Capt. von Papen and Wolf 
von Igel, Dr. Walter T. Scheele, Capt, von Kleist, Capt. 
Wolpert, of the Atlas Steamship Co., and Capt. Rode, of 
the Hamberg- American Line, manufactured incendiary 
bombs and placed them on board allied vessels. The shells 
in which the chemicals were placed were made on board 
the steamship Frederick der Grosse. Scheele was furnished 
$1,000 by Von Igel wherewith to become a fugitive from 
justice. 

XIII. Capt. Franz Rintelen, a reserve officer in the 
German Navy, came to this country secretly for the pur- 



11 

pose of preventing the exportation of munitions of war to 
the allies and of getting to Germany needed supplies. He 
organized and financed Labor's National Peace Council in 
an effort to bring about an embargo on the shipment of 
munitions of war, tried to bring about strikes, etc. 

XIV. Consul General Bopp, at San Francisco, Vice Consul 
General Von Schaick, Baron George Wilhelm von Brincken 
(an employee of the consulate), Charles C. Crowley, and 
Mrs. Margaret W. Cornell (secret agents of the German con- 
sulate at San Francisco) have been convicted of conspiracy 
to send agents into Canada to blow up railroad tunnels and 
bridges, and to wreck vessels sailing from Pacific coast ports 
with war material for Russia and Japan. 

XV. Paul Koenig, head of the secret-service work of the 
Hamburg-American Line, by direction of his superior offi- 
cers, largely augmented his organization, and under the 
direction of Von Papen, Boy-Ed, and Albert carried on 
secret work for the German Government. He secured and 
sent spies to Canada to gather information concerning the 
WeUand Canal, the movements of Canadian troops to Eng- 
land, bribed an employee of a bank for information con- 
cerning shipments to the allies, sent spies to Europe on 
American passports to secure military information, and was 
involved with Capt. von Papen in plans to place bombs 
on ships of the allies leaving New York Harbor, etc. Von 
Papen, Boy-Ed, and Albert had frequent conferences with 
Koenig in his office, at theirs, and at outside places. Koenig 
and certain of his associates are under indictment. 

XVI. Capt. von Papen, Capt. Hans Tauscher, Wolf von 
Igel, and a number of German reservists organized an expe- 
dition to go into Canada, destroy the WeUand Canal, and 
endeavor to terrorize Canadians in order to delay the send- 
ing of troops from Canada to Europe. Indictments have 
been returned against these persons. Wolf von Igel fur- 
nished Fritzen, one of the conspirators in this case, money 
on which to flee from New York City. Fritzen is now in 
jail in New York City. 

XVII. With money furnished by official German repre- 
sentatives in this country, a cargo of arms and ammunition 
was purchased and shipped on board the schooner Annie 
Larsen. Through the activities of German official represent- 



72 

atives in this country and other Germans a number of 
Indians were procured to form an expedition to go on the 
steamship Maverick, meet the Annie Larsen, take over her 
cargo, and endeavor to bring about a revolution in India. 
This plan involved the sending of a German officer to drill 
Indian recruits and the entire plan was managed and di- 
rected by Capt. von Papen, Capt. Hans Tauscher, and other 
official German representatives in this country. 

XVIII. Gustav Stahl, a German reservist, made an affi- 
davit which he admitted was false regarding the armament 
of the Lusitania, which affidavit was forwarded to the State 
Department by Ambassador BernstorfiF. He plead guilty to 
an indictment charging perjury and was sentenced to the 
penitentiary. Koenig, herein mentioned, was active in 
securing this affidavit, 

XIX. The German Embass}^ organized, directed, and 
financed the Hans Libeau Employment Agency, through 
which extended efforts were made to induce employees of 
manufacturers engaged in supplying various kinds of mate- 
rial to the allies to give up their positions in an effort to 
interfere with the output of such manufacturers. Von 
Papen indorsed this organization as a mihtary measure, and 
it was hoped through its propaganda to cripple munition 
factories. 

XX. The German Government has assisted financially a 
number of newspapers in this country in return for pro- 
German propaganda. 

XXI. Many facts have been secured indicating that Ger- 
mans have aided and encouraged financially and otherwise 
the activities of one or the other factions in Mexico, the 
purpose being to keep the United States occupied along its 
borders and to prevent the exportation of munitions of war 
to the allies; see, in this connection, the activities of Rin- 
telen, Stallforth, Kopf, the German consul at Chihuahua, 
Kj-um-Hellen, Fehx Somerfeld (ViUa's representative at 
New York), Carl Heynen, Gustav Steinberg, and many 
others. 



APPENDIX C. 

(Extract from Report of the Attoraey General for the year ending June 30, 1917, pp. 50-53.) 

1. NEUTRALITY AND OTHER CRIMINAL CASES CONNECTED 
WITH THE EUROPEAN WAR. 

Vigorous prosecution has been made of all cases involving 
violations of our neutrality and German criminal activities 
in this country in connection with the European war. In 
every such case tried, the Government has secured a con- 
viction of at least some of the defendants. This should 
serve to discoiu^age attempts of foreign sympathizers to 
use this country as a base for illegal operations designed to 
attack another country with which the United States is at 
peace. 

Among the more important cases were the following: 

1. United. States v. Bopp, Von Schaclc, Von Brincken, 
Crowley, Cornell, et al. — In this case the German consul 
general at San Francisco and his assistants in the consulate 
were convicted of conspiracy to set on foot a military expe- 
dition from this country in violation of section 13 of the 
Federal Penal Code, and also of violating the Sherman 
antitrust law in connection with a plot to blow up bridges, 
tunnels, docks, and steamers carrying war supplies. They 
were sentenced in January, 1917, as follows: Bopp, Von 
Schack, Q-owley, and Von Brincken, each to two years at 
McNeil's Island Penitentiary and to pay a fine of $10,000, 
and Mrs. Cornell one year and a day at the penitentiary, 
with concurrent sentence of one year for each in the county 
jail. 

Bopp, Von Schack, and Von Brincken have taken an 
appeal to the Circuit Court of Appeals for the Ninth Circuit. 
They are now interned as alien enemies. Crowley and Mrs. 
Cornell are now serving their sentences. 

2. United States v. Rintelen, Lamar, Martin, et al. — In 
this case the German agent, Franz Rintelen, and his Amer- 
ican associates, Lamar and Martin, were convicted, in New 
York, of a conspiracy in violation of the Sherman antitrust 

(73) 



74 

law in connection with a plot to tie up war munitions and 
promote strikes for the purpose. They were, in May, 1916, 
sentenced as follows: Rintelen, Lamar, and Martin each to 
serve one year's imprisonment in Mercer County prison, 
Trenton, N. J. 

3. United States v. Warner Horn. — The defendant, who 
alleged himself to be a German reserve officer, after his 
appeal to the Supreme Court was dismissed, was tried at 
Boston, and convicted of transporting, in violation of law, 
dynamite on an interstate passenger train, in connection 
with the blowing up of the international bridge at Vance- 
boro. Me. He was sentenced in June, 1917, to 18 months' 
imprisonment at Atlanta Penitentiary and to pay a fine of 
$1,000. 

4. United States v. Kleist, Becker, KarbcuJe, Praedel, Para- 
des, and Schmidt. — In this case these officers and members of 
the crews of German steamship companies were convicted in 
New York of conspiracy to destroy ships through the use of 
fire bombs secretly placed thereon. They were sentenced 
in May, 1917, as follows: Kleist and Schmidt to two years 
at Atlanta Penitentiary and to pay a fine of $5,000; Becker, 
Karbade, Praedel, and Parades, six months in jail and to 
pay a fine of $500. 

Others indicted with them — Walter T. Scheele, a German 
chemist; Otto Wolport and Eno Bode, two pier superin- 
tendents of German steamship companies; Von Igel; Von 
Papen — have not yet been tried. 

5. United States v. Han^ Tauscher, Alfred Fritzen, et al. — 
In this case the defendants were indicted at New York foi- 
conspiracy to set on foot a military cxpechtion in violation 
of section 13 of the Federal Penal Code, in connection with 
a plot to destroy the Welland Canal in Canada in September, 
1914. Defendant Tauscher was tried in June, 1916, and was 
acquitted, the jury apparently believing Tauscher's story 
that he had been deceived by Capt. Von Papen as to the 
destined use of the dynamite which Tauscher helped in fur- 
nishing. Defendant Fritzen pleaded guilty and was sen- 
tenced in May, 1917, to 18 months at Atlanta Penitentiary 
and pay a fine of $ 1 . 



75 

6. United States v. Sander and Wunnenherg. — In this case 
the defendants were tried in New York and convicted of a 
conspiracy to set on foot a military expedition or enterprise 
in violation of section 13 of the Federal Penal Code in con- 
nection with a plot to send spies to Europe in aid of the 
German cause. They were each sentenced in May, 1917, to 
two years at Atlanta Penitentiary and to pay a fine of $2,500. 

7. United States v. Hastings. — This defendant was en- 
gaged in the same plot with Sander and Wunnenberg. He 
pleaded guilt}'- at New York and was sentenced in May, 1917, 
to one year and one day at Atlanta Penitentiary. 

8. United States v. Jacohson, Gupta, Boehm, Wehde, et al. — 
The defendants were indicted for conspiracy to violate sec- 
tion 13 of the Federal Penal Code and also for a violation of 
section 13 in connection with a plot to promote a Hindu 
insurrection. The case was tried at Chicago (after the end 
of the year for which this report is made), and the defend- 
ants were found guilty and sentenced in October, 1917, as 
follows: Jacohson, Wehde, and Boehm each to serve three 
years in the penitentiary and pay lines of $3,000 for viola- 
tion of section 13, and each to serve two years in the peni- 
tentiary and pay fines of $10,000 for conspiracy to violate sec- 
tion 13, sentences to run concurrently; Gupta to serve 18 
months in jail and pay a fine of $100 for violation of section 
13 and to serve 18 months in jail and pay a fine of $100 for 
conspiracy to violate section 13, sentences to run con- 
currently. 

9. United States v. Theodor Frid.land, Johann Olsen, and 
Ole O/.sY^n. —Defendant Fridland pleaded guilty, in New 
York, on November 6, 1916, to a cliarge of conspiracy to 
ship antimony and nickel out of this country without having 
filed manifests with the collector of customs, as provided by 
Revised Statutes, section 4200. He was sentenced to pay a 
fine of $500. The other two defendants were not appre- 
hended. 

10. United States v. Joseph Newman, Oscar M. Neivman. 
William. Henn, Svenn du Rietz, and Hans R. Hanssen. — 

Defendants were indicted in New York m April, 1917, for a 
conspiracy to defraud the United States ui connection witii 
the exportation of rub])er without filmg manifests as pro- 



76 

vided by Revised Statutes,, section 4200. Henn pleaded 
guilty and was fined $25. Joseph Newman, Svenn du Rietz, 
and Hanssen were convicted in October, 1917, and sentenced 
to pay fines of $600, $300, and $20, respectively. Oscar 
Newman was found not guilty. Svenn du Rietz and Joseph 
Newman have sued out a writ of error to the circuit court of 
appeals. 

11. United States v. Blair and Addis. — -This case involved 
a violation of the law against foreign enhstments, in con- 
nection with recruiting for the English Army at San Fran- 
cisco. The defendants, having secured m the circuit court 
of appeals a reversal of their conviction on a point of law, 
pleaded guilty in August, 1917, and were fined $1,000 each. 

12. United States v. John LuhTcen, George SunTcel, Jonas Ed- 
ward Jensen, Heinrich Wattenhurg, Johann Wilhelm Buse, 
Moritz von Thulen, August Neuse, and William Schwariing. — 
The defendants, members of the crew of the German steamship 
Liebenfels, were tried at Charleston, S. C, and convicted of 
violating the act of March 3, 1899 (30 Stat., 1152), in con- 
nection with the sinking of the steamship in a navigable 
channel at Charleston on February 1, 1917. They were 
each sentenced, m March, 1917, to serve one year in the 
Atlanta Penitentiary and to pay a fine of $500. 

13. United States v. Johann Klattenhoff, Paul Wierse et 
al. — Klattenhoff was captain of the Liebenfels, and Wierse a 
Charleston newspaper man. Indictments were brought 
against them in connection with the same crime committed 
by the crew of the Liebenfels. Klattenhoff pleaded guilty 
to one indictment and received a sentence of one year at the 
Atlanta Penitentiary and to pay a fine of $500, and in 
October, 1917, was convicted under another indictment and 
sentenced to serve an additional six months at Atlanta and 
to pay a fine of $100. Wierse was convicted, after a trial at 
Charleston, in October, 1917, and sentenced to serve two 
years in the Atlanta Penitentiary and to pay a fine of $1,000. 

14. United States v. Albert Kaltschmidt, Gustav Jacobson, 
Charles Respa et al. — Defendants were indicted at Detroit. 
Mich., for conspiracy to violate section 13 of the Federal 
Penal Code, in connection with a military expedition against 



77 

Canada for the purpose of dynamiting munition factories. 
The case is set for trial at Detroit at an early date.^ 

15. United States v. Hamburg- American Steamship Co., 
Bum et al. — The defendants were convicted in 1915 of a 
conspiracy to defraud the United States in connection with 
false manifests on ships sent from New York and elsewhere 
to coal the German fleet in 1914. They were sentenced in 
December, 1915, as follows: Bunz, Koetter, and Hachmeister 
to 18 months and Poppinghouse to one year and a day at 
Atlanta Penitentiary. An appeal is still pending before the 
Circuit Court of Appeals for the Second Circuit. 

16. United States v. Franz von Rintelen and Andrew D. 
Meloy. — In this case the defendants are under indictment 
in New York for conspiracy to defraud the United States in 
connection with use by Kintelen, a German agent, of false 
passports in leaving this country. The case is pending. 

17. United States v. Franz Rintelen. — ^Two further indict- 
ments are pending in New York for perjury and forgery in 
connection with defendant's false passport. 

18. United States v. Walter T. Scheele, Gustav Steinberg, 
and Wolf von Igel. — The case is pending, owing to absence 
from the country of the defendants, who were indicted for 
conspiracy to defraud the United States in connection with 
the shipment of lubricating oil under the false designation 
of f ertiUzer. 

19. United States v. C. D. Bunker & Co., Swayne cfc Hoyt, 
J. L. Bley, Gustav Traub et al. — The case is still pending in 
San Francisco, defendants being indicted for conspiracy to 
defraud the United States in connection with false manifests 
and shipments of coal to the German fleet from San Francisco 
on the steamship Sacramento. 

20. United States v. Bopp, Von ScJiacTc, Von BrincTcen, 
Ram Chandra, Bagwhan Singh, et al. — This case is pending 
and will be tried in San Francisco in November, 1917. Over 
100 defendants, largely Hindus, together with the German 
consul general, Bopp, were indicted for conspiracy to violate 

> Since the date of the report defendants in this case have been convicted and sentenced 
as follows: 

Albert Kaltschmidt to serve four years at Leavenworth Penitentiary and pay a fine of 
$2,000; Mrs. Ida Neef and Mrs. Carl Schmidt three and two years, respectively, in the Detroit 
House of Correction and a fine of $15,000; Fritz Neef and Carl Schmidt two years in Leaven- 
worth Penitentiary and a fine of 810,000. 



78 

section 13 of the Federal Penal Code in connection with a 
military enterprise to promote a Hindu insurrection in India. 

21. United States v. Paul Koenig et al. — ^Tlie case is stUl 
pending in New York, defendant having been now interned 
as an alien enemy. The indictment was for violation of 
section 13 of the Federal Penal Code in connection with a 
plot to set on foot a military, expedition in 1914. directed 
against the Welland Canal. 

22. United States v. Herhert Kienzle and Max Breitung. — 
Defendants were indicted for conspiracy to place explosive 
bombs on sliips, in connection with which Kobert Fay and 
others were convicted on a separate trial. The case is still 
pending in New York, Kienzle having been now interned as 
an alien enemy. 

In order to make the showing more complete, it may be 
stated that the following convictions were obtained prior to 
June 30, 1916, in cases arising out of the European war: 

23. United States v. Soloman et al. — Defendants were sen- 
tenced to pay fines aggregating $2; 100 for conspiracy to 
defraud in connection with false shipping manifests in an 
effort to get rubber to Germany. 

24. United States v. Thompson. — Defendant was sentenced 
to three months in jail and to pa}^ a fine of $500 for violating 
section 10 of tlie Penal Code in recruiting men for service in 
the British Army. 

25. United States v. <ScMZZer.— Defendant sentenced to 
life term in Atlanta Penitentiary for piracy. 

26. United States v. Fay, Scholtz, Daeche, et al. — De- 
fendants sentenced to eight, four, and three years, respec- 
tively, at Atlanta Penitentiary for conspiracy to place ex- 
plosive bombs on rudders of vessels. Fay was an officer in 
the German Army. 

27. United States v. Jaeger et al. — ^Defendants sentenced 
to pay fines aggregating S3,400 for conspiracy to defraud in 
connection with false shipping manifests in an effort to get 
rubber to Germany. 

28. United States v. Zelinka et al. — Defendant sentenced 
to imprisonment for one week and to pay a fine of $200 foi 
conspiracy to defraud in connection with a false passport. 

29. United States v. Hans Adam vo7i, Wedel, Ruroede, 
et al. — Defendant Rm-oede sentenced for three years at 



79 

Atlanta, and others were jfined $300 each, for conspiracy to 
defraud in connection with false passports. Von Wedel, a 
German officer, became a fugitive and is supposed to have 
been dro^vned in a German submarine attack. 

80. United States v. Stegler et al. — Defendants Madden 
and Cook sentenced to 10 months and Stegler to 60 days in 
jail for conspiracy to defraud in connection with false 
passports. 

31. United States v. Stahl. — Defendant sentenced to 18 
months at Atlanta for perjury in grand-jury proceedings 
relative to Lusitania affidavit. 



LIBRARY OF CONGRESS 

III! 



020 933 417 3 

APPENDIX D. 

During the Civil War the following statutes were enacted 
for the confiscation or taking possession of enemy, hostile, 
and captured or abandoned property: The Confiscation Act 
of August 6, 1861, ch. 60 (12 Stat. 319); The Confiscation 
Act of July 17, 1862, ch. 195 (12 Stat. 589); The Abandoned 
and Captured Property Act of March 12, 1863, ch. 120 (12 
Stat. 820). The principal cases decided under these acts 
are as follows: 

Mrs. Alexander's Cotton (1864), 2 Wall. 404, 419, 420, 421. 

Union Insurance Co. v. United States (1867), 6 Wall. 759, 
763. 

United States v. Anderson (1869), 9 Wall. 56, 66. 

PelJiam v. Rose (1869), 9 Wall. 103, 106, 107. 

Bigelow v. Forrest (1869), 9 Wall. 339, 350. 

United States v. Padelford (1869), 9 Wall. 531, 540. 

Miller v. United States (1870), 11 Wall. 268. 

Tyler v. Defrees (1870), 11 Wall. 331, 345-349. 

United States v. Klein (1871), 13 Wall. 128, 136, 137. 

U^iited States, Lyon et at. v. Euckabee (1872), 16 Wall. 414, 
434. 

Planters' Bank v. Union Bank (1872), 16 Wall. 483, 495, 
496. 

Day V. Micou (1873), 18 Wall. 156, 162. 

The Confiscation Cases (1873), 20 Wall. 92, 104. 

Haycraft v. United States (1874), 22 Wall. 81, 93, 98. 

Lamar, Executor, v. Browne et al. (1875), 92 U. S. 187, 195. 

Alexandria v. Fairfax (1877), 95 U. S. 774, 778, 779. 

Conrad v. Waples (1877), 96 U. S. 279, 284, 285. 

Young v. United States (1877), 97 U. S. 39, 60, 61. 

United States v. Winchester (1878), 99 U. S. 372. 

Kirk V. Lynd (1882), 106 U. S. 315. 

Phoenix Bank v. Risley (1884), 111 U. S. 125, 130. 

Oakes v. United States (1899), 174 U. S. 778, 786-791. 

United States v. 1,756 Shares of Capital Stock (1865), 
5 Blatchf. 231, 234, 236. 

(80) 



